Brooks v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 177

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Brooks v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 177 PARTIES: Brooks, Wayne (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2013/231 PROCEEDING: Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 3 November 2014 HEARING DATES: 23 and 24 September 2013 11 October 2013 (Appellant's written submissions) 1 November 2013 (Respondent's written submissions) MEMBER: Industrial Commissioner Knight ORDERS : 1. The Appeal is dismissed. 2. Costs are reserved. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - whether injury arose out of, or in the course, of employment - whether worker's employment was a significant contributing factor to the injury - s 32(1) and (3)(b) - worker bears onus of proof - balance of probabilities - inconsistencies in evidence - history in medical reports - found worker has not established on the balance of probabilities that injury arose out of, or in the course or, employment or that employment was a significant contributing factor to the injury - Appeal dismissed. CASES: Workers' Compensation and Rehabilitation Act 2003, s 550, s32, Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 Daniel Hennessy AND Q-COMP (WC/2011/243) - -- 1 of 10 -- 2 Decision <http://www.qirc.qld.gov.au> APPEARANCES: Mr J. Morris, Counsel instructed by Shine Lawyers for the Appellant. Mr C. Clark, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. Amended Decision [1] This is an appeal by Mr Wayne Brooks (the Appellant) pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against the decision of Simon Blackwood (Workers' Compensation Regulator), formerly known as Q- COMP (the Respondent / the Regulator). The decision of the Regulator confirmed an earlier decision of WorkCover to reject Mr Brooks' application for compensation, in accordance with section 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). Brief Overview and History of the Appellant's Claim for Compensation [2] Mr Brooks, a 42 year old fitter/machinist, is claiming compensation for an injury which he says arose out of an incident which took place on 27 February 2013 during the course of his employment as he lifted a steel rod into a bar feeder while carrying out his duties at Eastgate Engineering. [3] Ongoing pain and symptoms since this time have been diagnosed as a right C7/T1 disc protrusion with severe multi-level degenerative disc disease. [4] The key issue for determination in this appeal is whether the Appellant suffered a personal injury, namely a disc protrusion within the meaning of s 32 of the Act. [5] For the appeal to succeed, the Appellant must prove on the balance of probabilities, that: • he suffered an injury, being a disc protrusion; • the injury arose out of, or in the course of, his employment with Eastgate Engineering; and • Mr Brook's employment with Eastgate Engineering was a significant contributing factor to the injury. Relevant Statutory Provisions [6] "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. … (3) Injury includes the following - ... -- 2 of 10 -- 3 (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; (ii) a disease; (iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation;" Evidence [7] Mr Brooks commenced working as a fitter/machinist at Eastgate Engineering in April 2011. His responsibilities included machining and making electrical components and parts - i.e. washers and brass fittings, utilised in the construction of buildings and other fixtures. The Appellant indicated he had a "fantastic" relationship with his employer. Likewise, Mr Bartlett (the factory manager) and his father, Mr Bartlett Snr (the owner of the business) indicated they had a positive relationship with the Appellant. [8] On the day of the hearing, Mr Brooks' evidence was that on Wednesday 27 February 2013 he recalled commencing work around 6.00 am but headed back to his home at around 9.45 am, after his wife advised him in his morning tea break his young son was unwell. [9] Mrs Simone Brooks recalled her youngest son Dillon had been vomiting the night before and had a fever and that Mr Brooks had returned home in the morning to visit his son. [10] Mr Brooks' evidence was that he returned to work at approximately 12.30 pm that same day. [11] Mr Brooks responsibilities on that particular day included lifting a 50mm diameter, three metre stainless steel rod into a bar feeder in order to make components for a university construction project. [12] The rods were required to be cut down with a saw prior to being fed into the bar feeder. He recalled using one bar per day to prepare the 50mm components. On the same day he was also producing 35mm parts for foundation hinges which utilised about four bars. [13] The bars were stacked underneath the bar feeder. Mr Brooks' evidence is that at approximately 2.00 pm he lifted a rod up and fed it into the bar feeder after which he pressed a feed button and the steel rod moved forward into the bar feeder. [14] Prior to feeding the rod into the bar feeder, Mr Brooks recalled turning his head to check to make sure it did not hit any other machines and feeling a very sharp, intense pain on the right side of his neck. Following this, the Appellant recalled there being a dull ache in his neck for the rest of the day. [15] Thinking he had just pulled a muscle, Mr Brooks' evidence was that he continued to work and did not report the incident. He concluded work at 3.30 pm that day and -- 3 of 10 -- 4 went home where he sat with his wife and had a cigarette and a coffee. He said he mentioned his neck pain to his wife in passing after he got home. [16] Mrs Brooks' evidence was that her husband came home that afternoon and told her he had hurt his neck. [17] Later that evening he said he watched some television and then went to assist his wife, who was bathing their children and changing their youngest son on the change table. Mr Brooks' evidence is that as soon as his wife passed him his youngest son to hold, he felt pain in his neck and recalled not being comfortable about holding him. [18] Mrs Brooks recounted a very similar description of that evening, recalling her husband was in pain when she handed him their son after changing him on a change table. Under cross-examination, Mrs Brooks recalled the change table incident occurring about half an hour after her husband returned home. [19] The following morning, a Thursday, Mr Brooks woke up and got ready to go to work. It was around this time that he first noticed he could feel pins and needles in the tips of his fingers. [20] The Appellant went into work the next day (a Thursday) and left at his normal his finish time. Whilst he said he was in pain, Mr Brooks' view was that he did not believe it was serious enough to report it to his employer. [21] Mr Brooks' did say that he mentioned he had hurt his neck to a work colleague called Nathan Southey, however Mr Southey was not called to give evidence in the proceedings. Mr Bartlett Snr confirmed Mr Southey was still an employee within his business. [22] Exhibit 7, which included an induction process and checklist signed by Mr Brooks when he first commenced employment with Eastgate Engineering, contained quite prescriptive instructions with respect to the reporting of injuries, no matter how minor. [23] Under cross-examination, Mr Brooks acknowledged he was aware, through his induction process and general observations within the workplace that he was required to report any workplace accidents to his employers and further that "there was a sign at the front of the building to say that all accidents should be reported, yes". [24] On the Thursday evening the Appellant recalled feeling a "horrible throbbing sensation radiating from the inside of my arm down to my fingers". [25] Mr Brooks indicated he might have taken some Brufen (sic) and Panadol for the pain the following morning before he left for work on a motorbike but was not entirely sure. [26] He explained he would often ride his motorbike to work on Fridays because he finished at 12 p.m. on a Friday and it was nice to have a bit of a ride home. -- 4 of 10 -- 5 [27] While he was riding to work he recalled struggling to use his fingers on his right hand to press the brake lever. Mr Brooks said that at this point he recalled thinking "something was up". [28] When he arrived at work on the Friday the Appellant's evidence is that he mentioned his experience on the bike to Mr Jamie Bartlett, the Factory Manager and the son of the owner of the business. [29] Mr Bartlett Jnr's evidence was he recalled Mr Brooks advising him his neck hurt after playing with his children over the weekend and that the conversation has occurred very early in the week, most likely after the weekend on a Monday. He was quite clear Mr Brooks did not mention anything about the injury occurring in the workplace. [30] Mr Bartlett Jnr recalled a subsequent conversation taking place between himself and the Appellant with respect to the weakness in Mr Brook's hand but was also sure this occurred after the initial conversation they had held in relation to his neck pain. [31] Mr Bartlett Jnr said that if Mr Brooks had indicated the injury occurred in the workplace he would have filled in the injury claim register, but that he did not do this because his understanding from his conversation with the Appellant is the injury occurred from lifting his kids over the weekend. [32] Mr Bartlett Snr, the owner of Eastgate Engineering, recalled having a similar conversation one Monday morning with Mr Brooks noting the Appellant saying: "I don't know whether it was something I did at the weekend, playing with the kids. Lifting the young fellow or whether it was what I was doing here last week, but I've got a bit of a stiff neck, sore shoulder." [33] He estimated the heaviest bar in the factory would be about 34kg but that it was normal work practice for two people to lift the bar due to its weight but also to ensure protection of the surroundings due to the length of the bar. [34] Mr Bartlett Snr's evidence is that he made a point of advising workers during the induction process to use two people to shift or load a bar. [35] Mr Brooks continued working throughout Friday and finished his shift at 12 noon. Once at home he recalled asking his wife if she had any stronger pain killers. [36] Mrs Brooks was unable to recall any further discussion about her husband's neck until the weekend, but gave evidence she provided him with some Dolacet pain killers on the Thursday morning. She recalled her husband was barely able to lift his arm over the course of the weekend and was unable to play with their children or hang out clothing. [37] It was not until the following Wednesday, on 6 March 2013, that Mr Brooks attended an appointment with Dr Luu. His evidence was that he and his wife wanted to give up smoking so they decided to see the GP about achieving this, and at the same time decided to raise the pain he was having in his neck and loss of sensation in his fingers. -- 5 of 10 -- 6 [38] Mr Brooks said that he told Dr Luu he had lifted something at work. Dr Luu asked him to wait a week to see if the pain settled and to come back so a scan could be organised if things did not improve. [39] Mrs Brooks' evidence was that her husband told Dr Luu in the initial Wednesday appointment he had hurt himself lifting a metal bar at work. [40] Notes of the initial consultation contained in a summary of Mr Brooks' patient records (Exhibit 6) for Wednesday, 6 March 2013 included: "History: [1] Onset of pain over right shoulder for four days Pain after lifting thing Pain getting worse Also pin and needle on right hand… Musculo-Skeletal: Right shoulder; tenderness over anterior shoulder region Pain on movement of shoulder but has FROM og shoulder". [41] When the pain did not subside Mr Brooks returned to see Dr Luu on Monday 18 March 2013 at which time a CT scan was arranged. Notes of the second consultation contained in a summary of Mr Brooks' patient records (Exhibit 6) for Monday, 18 March 2013 included: "History: Still has pain over right shoulder Pain getting worse No neck pain Pain radiated to right upper limb Also numbness right 5th finger and medial side of right 4th finger and right hand on medial side". [42] Notes of a follow-up consultation contained in a summary of Mr Brooks' patient records (Exhibit 6) for Wednesday, 20 March 2013 included: "History: Still has pain over right side of neck and pain down right arm and numbness over right hand. Said his was injured his right shoulder and right hadn (sic) due to heavy lifting a work and due to repetitive lifting Want to claim WC… Reason for contact: Right neck pain with right ulnar nerve conpression (sic) CT cervical spine: degenerative change with disc protrusion with impinging right nerves esp C4/5 and C5/6 level". [43] Following this, Dr Luu referred the Appellant to Dr Redmond, a Neurosurgeon based in Brisbane. -- 6 of 10 -- 7 [44] Mr Brooks lodged a workers' compensation claim form on 20 March 2013, noting the injury arose in his right arm and shoulder due to heavy repetitive lifting at work (Exhibit 1). [45] At his first consultation with Dr Redmond, Mr Brooks' evidence is that he told him he was lifting 50kg bars at work. He subsequently undertook some MRI scans after which Dr Redmond advised him he had a compressed nerve in his back due to degeneration and that he would require an operation. [46] Under cross-examination Mr Brooks conceded he had provided a number of inconsistent versions about how and when his injury arose to his employer, his treating medical specialists and eventually WorkCover. [47] The Appellant's explanation for his initial failure to advise his employer about the injury was due to the fact that he did not want to unnecessarily worry them. [48] He was unsure about why he had not advised his GP that the injury may have been work-related until some weeks after his initial visit, but at one point in his evidence indicated it was due to his view at the time that he "didn't think it was that serious and …was hoping it would pass". [49] Mr Brooks' explained that the inconsistencies in the reporting of how and when his injury arose when he initially met with Dr Redmond as compared to his evidence to the Commission on the day of the hearing arose due to the pain he was experiencing at the time. Specialist Medical Evidence [50] The Appellant attended an initial consultation with Dr Redmond, a neurosurgeon on 10 April 2013, with a subsequent follow-up appointment occurring on 15 April 2013. [51] In his report to Dr Luu (Exhibit 10) dated 11 April 2014, the history reported to Dr Redmond by the Appellant included: "He said he suffered a work-related injury on 27 February 2013. He is involved in machining steel, making components. This requires the dragging of stainless steel bars which weigh up to 25kgs and lifting pieces of stainless steel up to 40kgs in mass. He advises that he sustained an injury to his neck doing this activity on 27 February 2013." [52] In the same report, Dr Redmond noted: "I reviewed a CT scan of the cervical spine performed on 19 March 2013. This examination reveals moderately severe multi-level degenerative disc disease with foraminal narrowing at multiple levels, worse on the right side than the left." [53] A Queensland X-ray Report (Exhibit 14) provided to Dr Redmond on 11 April 2013 confirmed: -- 7 of 10 -- 8 "1. Degenerative disc disease at multiple levels; 2. Right central subarticular and intraforaminal disc protrusion at C7/T1 associated with foraminal stenosis involving the existing right C8 nerve root 3. Spondylotic changes together with a right central and subarticular disc protrusion associated with foraminal stenosis at C5/6 on the right." [54] In his oral evidence to the Commission, Dr Redmond explained that the reference to degenerative disc disease meant there was "evidence of longstanding degenerative process occurring". [55] He explained the extent of the degeneration in the Appellant was probably worse than one would hope for a person of his age. [56] In a report prepared for WorkCover on 17 April 2013 (Exhibit 11), Dr Redmond noted he was uncertain as to whether the nominated work event was a significant contributing factor in causing the injury. [57] In his oral evidence, Dr Redmond explained that he wrote those words because the pattern of injury was not typical or expected, further elaborating: "…a history of a - work-related injury lifting steel and dragging metal bars on that date, the 27th. Now he there - he sustained an injury to his neck performing that activity. Now, it was two days later when he was cycling to work on the 1st of March, that he noticed weakness of his right hand. Now that was a Friday, but he didn't have any pain that day. The pain came on in the right arm on the weekend, so it was the pattern of onset of symptoms that I regard as being atypical, uncharacteristic, that caused uncertainty in me as to the attribution of the injury." And later; "I wouldn't necessarily discount that the injury was responsible, but I couldn't really endorse the injury outright because of my uncertainties." [58] Dr Redmond also noted that when a nerve is compressed by the protruding disc the first symptom that a patient experiences is intense arm pain. [59] In a report dated 16 August 2013 (Exhibit 8), Dr Campbell noted the probable cause of Mr Brook's injury, based on the history reported to him, was strain to his cervical spine as a result of neck rotation whilst lifting a 40kg bar. [60] Under cross-examination Dr Campbell confirmed the degeneration in Mr Brook's spine was well advanced but also suggested the level of degeneration was fairly typical for a person over the age of thirty. [61] He explained it was possible to slip a disc by doing something as simple as sneezing or bending over but that it was more likely a person would experience a disc protrusion where they were performing manual handling tasks. -- 8 of 10 -- 9 [62] Dr Redmond, under cross-examination noted a disc protrusion could occur simply by rolling over in bed at night time and that "disc 'tears' are more likely to occur with a load, but disc protrusions can occur without a load." Considerations and Findings [63] There is no contest in this matter that Mr Brooks suffers from a C7/T1 intervertebral disc protrusion with C8 root compression. [64] In this appeal, Mr Brooks is required to prove on the balance of probabilities that his injury arose out of, or in the course of his employment as a fitter/machinist with Eastgate Engineering. The Act also requires Mr Brooks' employment to be a significant contributing factor to the injury. For employment to be a significant contributing factor, whether the injury is an injury in its own right or whether the injury is an aggravation, there must be a real or effective cause (see Croning v Workers' Compensation Board of Queensland1). [65] Mr Morris, Counsel for the Appellant submits on the evidence that it must be accepted that Mr Brooks suffered a sharp pain in his neck undertaking a work task on 27 February 2013 and further, what follows is that, by virtue of the expert evidence, the Appellant suffered a disc protrusion undertaking a work task on 27 February 2013. [66] The Respondent argues that a reasonable appraisal of all of the evidence inevitably leads to a conclusion the Appellant has not discharged his onus to establish he suffered a workplace injury. [67] In particular, the Respondent argues the history and account of the injury now being advanced by the Appellant does not reflect the contemporaneous events which occurred on 27 February 2013 and soon thereafter. [68] Whilst the Appellant was able to advance a clear account to Dr Campbell some six months later in August 2013 as to how his injury arose, a close review the evidence with respect to the various historical accounts provided by the Appellant to Dr Luu, Dr Redmond and WorkCover in the weeks following Mr Brooks' first consultation with Dr Luu, all to differing extents, reflect a degree of uncertainty from Mr Brooks' as to how the injury may have occurred. [69] In this respect, the submissions of the Respondent in so far as they highlight a lack of certainty and consistency in the contemporaneous reports of how the injury arose, are persuasive. [70] Regrettably, Mr Nathan Southey, an employee who may have been able to throw some more light on when Mr Brooks' first referred to his neck pain in the workplace, was not called by the Appellant to give evidence. 1 Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 -- 9 of 10 -- 10 [71] In my view, the evidence of Mr Bartlett Jnr and Mr Bartlett Snr with respect to the timing and nature of conversations with Ms Brooks in relation to his neck pain and the reasons for the pain reinforces the position that the timing and actual cause of the injury remains unclear. [72] Even if I put the evidence of Mr Bartlett Jnr and Mr Bartlett Snr to one side, in my view the Appellant's explanations for the inconsistencies in the reporting on the timing and cause of the injury were not overly convincing. [73] Whilst I do not think Mr Brooks' was intentionally misleading the Commission and may genuinely have considered his work might have contributed to the injury, the evidence before the Commission does not support a finding, on the balance of probabilities, that work was a significant contributing factor to the injury. [74] In support of his appeal the Appellant relies on Hennessy v Q-COMP2 ('Hennessy') where Hennessy failed to report his injury or attend for any medical treatment, yet was found by Vice President Linnane to have discharged his onus and proven, on the balance of probabilities that he suffered an injury. [75] One of the differentiating factors between Hennessy and the circumstances in this matter however, is the varying accounts as to when and how the Appellant reported the injury on or around the time when the injury first presented itself. [76] Whilst there is no doubt that Mr Brooks has suffered a personal injury, the evidence supports a finding that there is a high level of uncertainty as to how and when the injury arose and as to whether work was a significant contributing factor. [77] In this respect, I have formed the view that Mr Brooks has not discharged the requisite burden of proof. [78] The Appeal is dismissed and the decision of the Regulator is upheld. [79] The matter of costs is reserved. [80] I order accordingly. 2 Daniel Hennessy AND Q-COMP (WC/2011/243) - Decision <http://www.qirc.qld.gov.au> -- 10 of 10 --