Dulux Group (Aus) Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 131

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Dulux Group (Aus) Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 131 PARTIES: Dulux Group (Australia) Pty Ltd (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2013/138 PROCEEDING: Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 22 August 2014 HEARING DATES: 28 and 29 November 2013 MEMBER: Industrial Commissioner Black ORDERS - : 1. The appeal is allowed 2. The decision of the regulator dated 5 April 2013 is set aside and the decision of WorkCover dated 2 January 2013 is confirmed 3. The matter of costs is reserved CATCHWORDS: Whether employment was a significant contributing factor to right knee injury - where injury not notified to employer nor to medical practitioner when it happened - where worker's version of events changes over time leading to inconsistencies. CASES: Workers' Compensation and Rehabilitation Act 2003 s 32 (1), s 550 APPEARANCES: Mr S. Gray, Counsel instructed by K & L Gates (the appellant) Mr J. Merrell, Counsel directly instructed by the Worker's Compensation Regulator (the respondent) -- 1 of 16 -- 2 Decision Background [1] Dulux Group (Australia) Pty Ltd (the appellant) appeals a decision of the Review Unit of the Workers' Compensation Regulator (the regulator) to accept an application for workers' compensation lodged by Mr Neal Carr on 6 December 2012. On his claim form Carr referred to an injury to his right knee resulting from a slip on paint at his workplace on 14 August 2012. WorkCover rejected Carr's claim on 2 January 2013, however following an application for claim review the regulator decided on 5 April 2013 to set aside WorkCover's decision and deemed Carr's application for workers' compensation one for acceptance. [2] Carr commenced permanent full time employment with Dulux around January 2011 in the capacity of paint filler. Prior to this he had worked for Dulux under temporary or casual arrangements since October 2009. On 11 July 2011 Carr strained his right achilles tendon while performing his duties at work. This injury, which required an extended period of rehabilitation and surgery, led to the development of an antalgic gait. Carr was off work for a period of approximately nine months. He resumed work under a suitable duties plan on 17 April 2012 and recommenced paint filling work around the end of June 2012. He was scheduled to make a full-time resumption of all normal duties in early September 2012. [3] From the time that Carr returned to work in April 2012, he walked with an altered gait pattern. On 11 October 2012 it was discerned that this condition appeared to have worsened and Carr was told by Rodney Meredith to stop work and to go and seek medical attention. Carr visited his general practitioner on 13 October 2012 and complained of right knee pain which he attributed to walking up and down stairs with his antalgic gait. An application for compensation in respect to this injury was accepted by WorkCover on the basis that the right knee injury was secondary to the accepted achilles tendon injury. The claim was not contested by Carr's employer. [4] On 18 October 2012 Dr Tomasiello commissioned an MRI scan of Carr's right knee. The MRI was reviewed by Dr McCartney when, at the request of WorkCover, he conducted a further assessment of Carr on 5 November 2012. This assessment led Dr McCartney to question the cause of the secondary injury and it was his conclusion that Carr's knee injury could not have been caused by walking up and down stairs with an altered gait. As a result of this assessment Mr Carr's benefits were discontinued by WorkCover. [5] Following the 5 November assessment by Dr McCartney, Carr was referred by Dr Tomasiello to an Orthopaedic Surgeon, Dr Houston. It was arising from this referral that a cause other than the one previously relied on was considered and a view emerged that the right knee injury could not be traced back to a single or specific incident and that the most likely cause was slips in the workplace occurring over time. [6] On 6 December 2012 Carr submitted a further application for compensation in respect to his right knee injury. On this occasion he attributed the injury to a slip on -- 2 of 16 -- 3 paint at work on 14 August 2012. It is this claim which is subject to review in these proceedings. [7] Around 1.20pm on 14 August 2012 the production process at Dulux was interrupted when a valve failed resulting in a substantial quantity of paint escaping from one of the storage pots and spilling on to the floor of the factory. Such disruptions to the production process occurred from time to time and were referred to as "high tide" events. Carr was on duty at the time and he was one of a number of workers who responded to the event. He said that in moving to shut down the mixer to stop the overflow of paint, he slipped on the paint covered surface and injured his right knee. Issue for Determination [8] The appeal to the Commission is by way of a hearing de novo. The question for determination in this appeal is whether, on the balance of probabilities, Carr sustained an injury to his right knee during a workplace incident on 14 August 2012. The determination is to be made pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act), which relevantly provides: "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 [9] The appellant prepared a bundle of documents which was admitted, with the consent of the respondent, into the evidence as Exhibit 1. Exhibit 1 comprised 280 pages of documents relevant to the proceedings including medical reports, WorkCover records, and employer records. Evidence [10] During the course of the proceedings, evidence was provided by 15 witnesses. The witnesses for the Appellant were as follows:  Moray Skilling (HR Manager)  Ian Andrews (Leading Hand)  Lea Graham (Occupational Health Nurse)  Christopher Clarke (Co-worker)  Timothy Cross (Machine Operator)  Bruce Tucker (Production Supervisor  Rodney Meredith (Production Manager)  Dennis Byrne (Team Leader  Richard Patman (Safety Advisor)  Gary Watson (WorkCover Customer Advisor)  Dr Anthony Houston (Orthopaedic Surgeon)  Dr Robert McCartney (Occupational Physician) -- 3 of 16 -- 4 The witnesses for the Regulator were as follows:  Neale Carr (Worker)  Dr Mark Shaw (Orthopaedic Surgeon)  Dr Patrick Tomasiello (GP) Medical Evidence [11] Carr's return to work program was prepared in consultation with Carr's treating Orthopaedic Surgeon, Dr John Walsh. In a letter to Dr Tomasiello dated 5 June 2012 Dr Walsh said that he hoped Carr would be able to resume full time duties by the end of August 2012. In a letter to Dr Tomasiello dated 18 July 2012, Dr Walsh said that Carr "will be virtually back to full activities by the second September and his foot is much more comfortable now." However on 16 August 2012 Dr Walsh said in a report to Workcover that while Carr had minimal tenderness over his right achilles tendon, he had unexpectedly presented with right sided plantar fasciitis. Dr Walsh said that the plantar fasciitis was being "aggravated by his tight achilles tendon which is the work related injury but the plantar fasciitis itself is not work related." [12] Dr Walsh examined Carr again on 11 September 2011 and reported to Dr Tomasiello that Carr had been receiving some shock therapy from his physiotherapist for plantar fasciitis; that he (Dr Walsh) had discharged Carr from his care as his achilles tendon is not giving him any further difficulties; and that Carr's heel pain would be brought under control once he received his in shoe orthoses. [13] Carr first reported a problem with his right knee to Dr Tomasiello on 13 October 2012. It was Dr Tomasiello's evidence at T2-12/13 that Carr said that his right knee had been troubling him for the past two months. Further he had trouble negotiating steps because of the right achilles tendinitis which was getting worse. On examination, Dr Tomasiello said that he found that the flexion of the knee was greatly limited. He said that Carr was tender over the medial aspect which was often indicative of an injury to the meniscus. He arranged for Carr to have an X-ray of the right knee. He informed Carr on 15 October 2012 that the only abnormality disclosed by the X-ray was a small effusion in the supra-patella bursa. [14] However an MRI taken on 1 November 2012 revealed a medial meniscus tear, a popliteus musculo tenderness junction tear and a partial tear of the medial gastrocnemius origin. Dr Tomasiello said that the MRI did not reveal any past history of arthritis in the right knee nor any significant degeneration in his right knee. He said that a twisting injury would typically cause a medial meniscus tear. He gave the following evidence when asked to comment on the claimed mechanism of injury (T2-16): "All right. If you can assume for the moment that Mr Carr stepped on some wet paint, twisted his knee such that his weight went on to his right knee but he didn't fall over, he used his hands to stop him falling complete over, could that be an event that caused a tear to the medial meniscus?---Yes, I do believe that's a possibility." -- 4 of 16 -- 5 [15] Carr did not tell Dr Tomasiello on 13 October 2012 that his right knee injury or pain was work related and as a result Dr Tomasiello did not issue a workers' compensation medical certificate. However he did issue such a certificate on 15 October 2012. In this certificate the doctor stated that Carr was suffering from effusion to the right knee and that the injury occurred over a period of two to three months. The worker's stated cause of injury included in the certificate was to the effect that Carr had trouble negotiating steps at work because of his right Achilles tendinitis. [16] Prior to the 13 October consultation, Carr had also seen Dr Tomasiello on 30 June 2012, 3 July 2012, 4 August 2012, 1 September 2012 and 29 September 2012. Significantly Carr did not report right knee pain or draw attention to a right knee injury during the two September consultations. Nor did he inform Dr McCartney when he completed an independent medical assessment on 21 September 2012 that he was experiencing knee pain. In requesting the examination WorkCover described the injury to be assessed as "right achilles tendon rupture". However in his evidence Dr McCartney stated that notwithstanding the specific request it was his practice to seek a comprehensive history from the patient about previous or other injuries including a history pertaining to parts of the body not the subject of the assessment. The effect of this evidence was that Carr did not inform Dr McCartney that he was experiencing any right knee pain and no injury to the right knee was assessed. [17] Dr McCartney's examination revealed inter alia that Carr had an "obvious antalgic gait favouring the right lower limb" which meant that Carr was limping due to pain and the purpose of the limp was to favour the right limb. In his report Dr McCartney said that Carr reported pain over the achilles tendon and in his plantar fascia as a result of prolonged standing or walking, particularly up or down stairs. [18] Subsequently WorkCover asked Dr McCartney to assess Carr's right knee injury which had been accepted as secondary to the right achilles injury. This assessment was undertaken on 5 November 2012 and in his report dated 12 November 2012 Dr McCartney stated that Carr informed him that since the 21 September 2012 assessment, "his right knee has been swelling and locking up and he is having difficulty negotiating stairs. He states that due to his abnormal gait this is putting pressure on his knee. He first noticed these symptoms in August 2012". [19] It was Dr McCartney's evidence at T1-55 that the symptoms displayed by Carr on 5 November 2012 such as swelling in the knee, a grossly abnormal gait holding his knee stiff, and a diminished range of motion suggested that something acute had happened. In answering specific questions in his report, Dr McCartney stated that the antalgic gait that he observed in the assessment of 21 September 2012 could not have caused the MRI findings of 1 November 2012. He said that "it is reasonable to accept that the right knee was aggravated by his abnormal gait but could not cause those traumatic changes". [20] In his oral testimony Dr McCartney agreed that there are usually two causes of a medial meniscus tear. The first is a traumatic event such as a twisting of the knee while the second cause arises from degeneration of the cartilage. Dr McCartney agreed that a new tear in a healthy meniscus may "just feel like a twinge initially and -- 5 of 16 -- 6 then over a period of days or weeks it can get worse". Apart from pain worsening over time, a locking of the knee could also be a symptom. However Dr McCartney pointed out that the MRI taken on 1 November 2012 disclosed not only a meniscal tear but also tears to the popliteus and medial gastrocnemius muscles. He said that the latter tears bleed, are acutely painful and cause swelling and dysfunction of the knee. [21] Dr McCartney said that meniscal tears were common in incidental MRI findings. He said that that it was "distinctly possible" that whatever caused the popliteus tendon junction to tear and the gastrocnemius muscle to tear could have caused the medial meniscus to tear as well. If this were the case the bleeding and swelling would have been caused by the popliteus tendon and gastrocnemius muscle tears and not the meniscal tear. His evidence was to the effect that while the onset of pain associated with a meniscal tear could be delayed beyond the date of injury and occur over time, the onset of pain and swelling caused by the popliteus and gastrocnemius tears would have been experienced on the day of the injury. He accepted that if the only injury to the knee was a meniscal tear "then that can sometimes just feel like a twinge initially and then over a period of days or weeks it can get worse". [22] Dr Houston examined Carr on 8 November 2011 following a referral from Dr Tomasiello. In his report to Dr Tomasiello (page 86 of Exhibit 1) about the results of his examination Dr Houston said Carr may have developed knee pain some time after he resumed employment in April 2012: "...He spent a total of seven months off work and now has been trying to get back to suitable duties. Somewhere in that period he started to develop knee pain that didn't improve. He's had a few slips at work because he has been walking awkwardly that he describes occurring on wet paint. He is also unclear whether he injured the knee at the same time as the ankle." [23] In his oral testimony Dr Houston said that Carr was unable to ascertain a definite single event that the knee condition could be attributed to. He said at T1-19 that: "when we went through his history, we explored a few different options, but it appeared that it was something that gradually had come on and had possibly been related to a few of these slips". [24] When responding to questions asked by WorkCover, Dr Houston said on 19 November 2012 (page 172 of Exhibit 1) that the injury may have resulted from slips on wet paint as described by Carr. Dr Houston said, when asked to describe the stated mechanism of injury, that the injury occurred "possibly as a result of the slips" and added that on Carr's history it was "difficult to be certain on a specific event". [25] Dr Shaw agreed that the findings of the 1 November 2011 MRI of Carr's right knee showed a medial meniscus tear, a popliteus musculotendinous junction tear, and a tear to the medial gastrocnemius origin. Dr Shaw examined Carr on 19 February 2013 and provided a report dated 22 February 2013. In arriving at the conclusions stated in his report Dr Shaw relied on a history given to him by Carr which was to the effect that on 14 August 2012 he slipped on paint on the workshop floor, injuring his right knee. Dr Shaw agreed that the claimed mechanism of injury -- 6 of 16 -- 7 was consistent with Carr's right knee condition as disclosed by his examination and the 1 November 2012 MRI. He said that he would expect a close association between the 14 August 2012 slip and the onset of pain. In his report he said that Carr developed chronic medial knee pain which he explained in his evidence meant that Carr's knee pain commenced on 14 August 2012 and continued unabated for at least three months. In his evidence in the proceedings Dr Shaw said at T1-86: "Well my opinion on the cause comes from the patient and the description of when the pain started. Yes?---Meniscal tears are, in the majority of cases, with the exception of those degenerative tears I alluded to earlier are usually trauma related. Yes?---But the patients nearly always can tell you when it happened and it's not always the case but they can usually say, I did this, my knee hurt a lot, it was swollen the next day and it hasn't been right since so it's usually quite a definite history of - of injury or event that - that resulted in the tear and the subsequent symptoms." [26] Dr Houston said that a meniscal tear could be caused by "one big sudden force that's enough to tear it instantaneously" or it could be caused by "a series of smaller insults to it which build up over time". Either cause may result in a tear which looks the same. He said at T1-21 that when he completed the surgery on Carr's right knee in April 2013 he could not tell whether the tear resulted from a traumatic event or developed over a period of time. [27] It was Dr Houston's evidence that the injury can be brought on by the twisting of the knee involving a combination of load, flexion and twisting. While he agreed that that mechanism described by Carr could have caused the tear, he also said it could be caused by other activities (T1-21): "Squatting, we might see it with someone, you know, changing a tyre and is squatting down and trying to twist and lift the tyre. Any situation like that, or picking up boxes off the floor. It doesn't necessarily have to be the, you know, running, playing touch football, taken out in a tackle kind of injury." [28] Dr Houston said that if Carr's injury had resulted from a single event involving an instantaneous tear, a lot of swelling of the knee initially with associated pain could be expected, followed by locking or catching of the knee as the injury settles down. Often locking and catching of the knee come on when a person starts to use the knee more. A bad tear could take up to four or five days for the swelling to come down but in less serious instances the knee might settle down within a couple of days. Dr Houston rated Carr's tear as a moderate tear. His evidence at T1-22 was to the effect that while in the first instance the injury might be taken to be like a sprain or a strain, once the person does something that causes them to load up the meniscus the injury will flare up again. He said what results is a "recurring pattern of pain every time they try and do something that loads the meniscus up". Expressed differently he agreed that the injury could get worse over time simply by the progressive use of the knee over the ensuing months. -- 7 of 16 -- 8 [29] On 6 December 2012 Dr Tomasiello issued a further workers' compensation medical certificate which included a worker's stated cause of injury as a slip on paint on 14 August 2012. On and After 14 August 2012 [30] On 14 August 2012 Carr was scheduled to work from 5.45am to 2.42pm. The high tide event occurred at 1.20pm. In his evidence he described how he injured himself (T2-73): "Okay. And what happened?---I rushed over there to switch the mixer off, stepping from the dry ground to where the wet paint was. Stepping through the wet paint I twisted my knee. Okay. When you say you twisted your knee, can you explain to the commission exactly what happened?---When I stepped from the dry ground, and my right foot hit the wet paint, I kind of like did the old ice skate, you know, for the moment. And like, I skidded across the ground, twisted my knee, and then my hands went forward to stop myself going flat on the - in the paint. And then I gathered myself up. I went over towards the pot, and switched the mixer off." [31] Carr said at T2-75 that when he slipped he felt immediate pain on the inside of his knee. He also said that he slipped a second time when he was assisting in the clean up of the spill. On this occasion he said that he hurt the inside of his groin or strained his groin. [32] It was Clark's evidence that he was at work on 14 August 2012 and that he immediately responded to the "high tide" call. He said that his work station was about 15-20 metres from the area where the spillage had occurred. He said that the spill was about 5 metres in circumference and that a lot of paint had gone on to the floor. He said Carr was in attendance at the spill when he arrived. He then recorded the following evidence at T2-4: "What actually happened with that?---Well, I just - as he was walking across to take more rags across to the other side to contain it all, he just slipped. He didn't fall over or anything like that but he slipped enough for me to worry that, like, he might hurt himself. Because he only just come back from his previous injury and I didn't want him to be hurt, you know, laying on the floor and have to drag him across the paint or anything like that so I just said, 'It's best for you to stand next to the bin and just pass us in rags'. All right. Did you think - did you make that comment because you thought he had injured himself then?---No, I - I just - he slipped. Yes?---So, I didn't think he hurt himself at all. I just was trying to prevent anything else actually happening, you know." [33] Clark agreed that in order to shut the valve of the mixer off and stop the spillage of paint, Carr would have walked across an area of floor covered by wet paint and then returned to start the process of gathering rags for the clean-up. -- 8 of 16 -- 9 [34] Carr said that after the incident on 14 August 2012 he did not seek any treatment nor did he file a report. He did not file a report because he "was already on WorkCover" and he did not want "to say anything to jeopardise" his job. Meredith agreed that Carr "was definitely nervous" around his supervisor Dennis Byrne. He said that Carr was concerned about whether Byrne thought he was doing enough work. Tucker said that Carr complained that Byrne was not following the suitable duties plan in that he had not allocated a specified amount of time for Carr to spend on manual machines which required the use of a foot pedal. Once the non-compliance had been brought to Tucker's attention Carr was deployed on to the manual machines as required by the suitable duties plan. Byrne confirmed that Tucker had passed on Carr's complaint about the suitable duties plan. Byrne denied that he had spoken inappropriately to Carr or treated him poorly while other witnesses for the employer declined to provide support for the proposition that Byrne had been abusive toward Carr. In general terms the employer representatives argued that a suggestion that Carr was being victimised because of his suitable duties status was not consistent with workplace practice or culture. [35] Carr communicated his concerns about Byrne to WorkCover on 5 November 2012 where a record of conversation stated that Carr had reported that "he had issues with his team leader and felt this was detrimental to his recovery". Further the record of conversation of a call made by Carr to Watson on 3 December 2012 included an entry to the effect that Watson was told by Carr that he did not report the injury he sustained on 14 August 2012 because he was "scared" of his team leader. In his evidence in the proceedings Carr said that throughout the rehabilitation process Byrne was "riding me like there was no tomorrow". However this evidence was not corroborated and presented as an exaggerated version of any state of affairs capable of being sustained on all the evidence. [36] Carr said that on the night of 14 August 2012 his knee was sore and "it started to blow up a bit". He said that every evening he would elevate his knee and apply Dencorub. It was Carr's evidence that after 14 August 2012 his knee began locking up (T2-76): "Okay. After the high tide incident which occurred on the 14th of August, was there any change in the way that you walked?---Yes. I - my knee was locking up and I could not turn my knee physically back in again. I'd walk with - like that and drag my leg along, and it was stuck out to the side. I could not - it was locked up and it wouldn't come back in." [37] Despite this assertion, Carr did not tell WorkCover, Graham, Dr McCartney on 21 September 2012, nor Dr Tomasiello in his September appointments that his knee was locking up and was the cause of his exaggerated gait. Nor, on the evidence, did he tell Dr Tomasiello about this condition on 13 October 2012. Carr also said that he told Dr McCartney on 21 September 2012 that he had a sore knee. This evidence contrasts with the contemporaneous notes of Dr McCartney and also the oral evidence of Dr McCartney. Similarly while Carr asserted that he told Dr Walsh on 16 August 2012 that he had a sore knee, there is nothing in Dr Walsh's report to suggest that knee pain was raised with him. Carr gave no evidence about his attendance on Dr Walsh on 11 September 2012. Ironically despite claiming that he told Dr Walsh and Dr McCartney about his sore knee, Carr agreed that he did not -- 9 of 16 -- 10 tell his own long standing GP Dr Tomasiello about his knee when he saw him on two occasions in September. [38] Lea Graham's case notes of her treatment of Carr's injuries are included in Exhibit 1 at pages 39-47. Ms Graham was on annual leave from 11 July 2012 to 28 August 2012. The entry in the notes on 28 August 2012 said to the effect that on her return from leave Graham was told by the relieving nurse and Carr's supervisor that Carr was having issues and that he was limping quite heavily. It was also stated that Carr has not been involved in any new incidents. The entry on 5 September 2012 referred to a conversation with Watson and stated inter alia that Carr is almost doing full duties but continues to report difficulties using the foot pedals. Further it was stated that the main issue for Carr is the pain/tightness in his ankle and walking with a limp. The entry on 6 September 2012 indicated that Graham met with Carr and discussed his progress. Carr said that he was "managing his suitable duties okay". She also met with Carr on 9 September 2011 when Carr stated that the specialist was happy with his progress. The note on 12 September 2012 refers to a communication from Watson which says that Carr has been issued with a full clearance and that his claim will be closed on 1 October 2012. Graham met again with Carr on 18 September 2012 to discuss progress. Carr reported pain when overworking his foot and intermittent pain in his hip. The note goes on to say that Graham told Carr to inform Dr McCartney at the assessment on 21 September of his current symptoms and any other issues or concerns. [39] Despite regular contact between Graham and Carr after 28 August 2012, Carr did not raise the issue of knee pain with Graham until 9 October 2012. The entry in the case notes included the following: "...Continues to walk with a limp with his foot rotated right. Reports pain to his right knee possibly as a result of this and has been wearing a knee brace for the past two days and reports slight benefit from this. ...Continues to limit time on foot pedals as feels this is a task that he can associate with increased pain also feels walking up the stairs can be an issue." [40] It was the evidence of Gary Watson, WorkCover Advisor, that he received a phone call from Carr on 16 August 2012. He said that the record of conversation confirmed that Carr said that he had visited his treating medical specialist (Dr Walsh) and that he would undergo physiotherapy. On 30 August 2012 a further phone conversation took place between Watson and Carr. The record shows that Carr said that he was feeling good after the physio and that he had been for a ride on a bike and that felt good. In neither of these phone calls did Carr raise any concern about a problem with his right knee. On 11 October 2012 Watson was advised by Lea Graham that Carr was complaining of right knee and hip pain. On the same day Carr told Watson that his knee was causing problems and that he was experiencing pain while walking up and down stairs. The record of conversation showed that Carr had not previously told WorkCover of any right knee pain. [41] There was some suggestion that Carr was confused and intimidated during his attendance on Dr McCartney on 5 November 2012, but such propositions have not been made out. Both Watson and Graham attended this assessment with Carr and neither of them was of the view that Carr was confused or intimidated or that there -- 10 of 16 -- 11 had been any communication difficulty or that discord emerged between Carr and Dr McCartney in the course of the assessment. [42] Meredith said that he interacted with Carr in the workplace on a regular basis after Carr returned to work in April 2012. He said that he often inquired about how Carr's injury was progressing and talked to him about his suitable duties plan. He said that on 11 October 2012 he noticed how Carr was walking and concluded that Carr was "obviously not right". When Carr told him that his case had been closed and that there were no further doctor's appointments, Meredith encouraged Carr to go and see his doctor. Soon thereafter Carr was told to stop work and go home. [43] An entry dated 7 December 2012 recorded the nature of the injury as explained by Carr to a WorkCover representative. The entry stated in effect that Carr had slipped on paint and twisted his knee. He said that he experienced immediate pain to the knee and a slight tingle around the groin area. An earlier record of conversation dated 22 November 2012 disclosed that Carr said that "he never noticed his knee being sore at the time but then coming off the back of the Achilles repair his whole lower limb has been sore at different times". [44] When Dulux became aware that Carr claimed that he had injured himself at work on 14 August 2012, Mr Skilling, the HR Manager, was asked to investigate. This investigation was conducted on 10 and 11 December 2012. It was Skilling's evidence that the employees who were on duty at the time of the high tide event did not support Carr's version of events. He said that "all our investigations pointed to that it didn't happen as he said" (T1-14). Conclusions [45] The respondent argued that there was sufficient evidence to support a finding that Carr had slipped at work on 14 August 2012 resulting in a tear to the medial meniscus of his right knee. In this regard I accept that Carr was at work on 14 August 2012; that he responded to the high tide event by shutting down the mixer where the overflow of paint was occurring; that in order for Carr to shut down the mixer he needed to traverse a section of floor which was covered by paint; and that the paint covered surface was very slippery. I also accept that Clark observed Carr slip (the second slip) when he was involved in the clean-up process. It followed in the respondent's view that while Carr's injury was not witnessed, when the aforementioned findings were considered in conjunction with Carr's own testimony, the evidence overall was sufficient to found a conclusion that Carr's right knee injury was caused by a slip at work on 14 August 2014. It was also a relevant factor that while Carr did not discuss the development of right knee pain, it was common knowledge that his mobility around the factory was deteriorating and that his condition was worsening not getting better. While there was a presumption that the deterioration in his right leg condition was related to his achilles tendon injury, it could have been the case that the problem arose from a right knee injury sustained on 14 August 2012. [46] Carr's version of events however was attacked by the appellant on a number of grounds including Carr's failure to report the incident to his employer, his failure to seek treatment for the injury from his GP prior to 13 October 2012, the absence of any contemporaneous reporting of his right knee injury to medical practitioners and -- 11 of 16 -- 12 others, and the changes over time in Carr's account of how the injury occurred and about the onset of pain. [47] It was the appellant's case that inconsistencies in Carr's account of how his injury was sustained and Carr's failure to report the injury on a timely basis meant that Carr could not satisfy the Commission that it was more probable than not that he had injured his right knee in a slip at work on 14 August 2012. In particular the appellant drew attention to the following factors:  While the 15 October 2012 workers compensation medical certificate recorded that the injury was caused by walking up and down stairs with an antalgic gait, the 6 December 2013 certificate stated that the cause of injury was a slip on paint on 14 August 2012;  Carr provided differing accounts about the onset of pain ranging from a gradual onset of pain to an immediate onset of chronic pain;  In his second assessment by Dr McCartney on 5 November 2012, Carr did not attribute the cause of his right knee injury to the 14 August 2012 incident;  In his consultation with Dr Houston on 8 November 2012 Carr described a gradual onset of symptoms and an injury caused by repeated insults, however in his subsequent consultation with Dr Shaw, Carr attributed the injury to a traumatic event occurring on the one occasion. [48] A significant matter in contention in the proceedings related to the fact that there was no contemporaneous reporting by Carr of the 14 August 2012 incident or the right knee injury. In this regard the following facts or circumstances are relevant:  Carr did not report the incident to his employer;  Carr did not seek any medical treatment immediately after the accident;  Carr did not raise his right knee injury with Dr Shaw on 16 August 2012 or 12 September 2012. Further it was following the 12 September consultation that Carr was given a full clearance by Dr Shaw to resume normal duties on 1 October 2012;  Carr reported to Watson on 30 August 2012 that he was feeling really good after physiotherapy and that he had been riding his bike;  Carr's did not tell Dr Tomasiello of his right knee problem during the 1 September 2012 or 29 September 2012 consultations;  Carr did not report any knee pain to Graham on 6 September or 18 September 2012 or on any other occasion before 9 October 2012;  Carr did not report any right knee problems to Dr McCartney on 21 September 2012 and the Doctor's examination of Carr did not reveal any signs of an injury to the right knee; -- 12 of 16 -- 13  In his consultation with Dr Houston on 8 November 2012, Carr did not attribute his injury to a single traumatic event occurring on 14 August 2012 but after exploring a few different options expressed a view that the injury was possibly related to a few slips. [49] The respondent submitted that it was understandable that Carr would have been reticent to report his right knee injury given that he had only recently returned from a long absence from work arising from an earlier work related injury. It was put that Carr feared retaliation from an unsympathetic supervisor and that his ongoing employment might be jeopardised. While Byrne denied that he treated Carr unreasonably or inappropriately, there was some basis in the evidence to suggest the relationship was fractious. Meredith agreed that Carr had expressed some concern to him about Byrne while both Graham and Watson said that Carr had raised some concerns about Byrne in a meeting that took place on 5 November 2012. However the 5 November allegations by Carr about Byrne lacked specificity other than a complaint that Byrne was not complying with Carr's suitable duties plan. Graham's contemporaneous note of 5 November 2011 stated that she had met with Carr on a regular basis to discuss his suitable duties plan and that only one concern had been raised by Carr. This matter related to Byrne's failure to deploy Carr on to manual machines where he would have operated a pedal. Graham said that this matter was addressed promptly with Byrne and Carr was moved to the manual machines in accordance with his suitable duties plan. This evidence was supported by Tucker. Carr's other allegations about Byrne involved two instances where Byrne was said to be abusive or aggressive toward Carr. However these allegations were denied by the Dulux witnesses. [50] Even if I accepted that Carr was intimidated by Byrne, there is a difference to be drawn between an individual response by a supervisor and a whole of organisation response. Additionally there were a number of other channels in Dulux that Carr could have sought refuge in. He appeared to enjoy regular contact with Meredith who took an interest in his rehabilitation and who he was able to converse with on a casual basis. Given that his employment was subject to a suitable duties plan, he could also have raised any problems with Tucker, his return to work co-ordinator, who was Byrne's supervisor. Finally Carr was in very regular contact with Graham and there would have been many opportunities for him to discuss barriers to a constructive rehabilitation program with her. A review of all the relevant evidence does not in my view support a finding that Carr's failure to report the alleged injury to his employer was adequately explained by an alleged fear of reprisal from his supervisor. [51] Further, Carr's failure to report his injury was not limited to communications with his employer. There were many other interactions which presented an opportunity for Carr to raise his injury with other relevant persons. In particular he could have mentioned his injury or its symptoms to Watson from WorkCover or Dr Tomasiello, his general practitioner of some 10 years standing. It is not as though there was any barrier to communication. Carr talked to Watson on 16 August 2012 and 30 August 2012 and attended on Dr Tomasiello on 1 September 2012 and 29 September 2012. In the circumstances it is difficult to conclude that, if Carr had -- 13 of 16 -- 14 sustained a significant injury on 14 August 2012, he would not have raised the matter on these occasions. [52] The respondent submitted that Carr's failure to notify his GP of his right knee injury on 1 September 2012 was understandable given his preoccupation with other health issues at the time. In his evidence, Carr asserted that he told Dr McCartney and Dr Walsh in September 2012 that he was experiencing right knee pain but I have difficulty in accepting the veracity of these views given that there was no record of any such disclosure in the medical records and it would appear incongruous that Carr would mention right knee pain to Dr Walsh and Dr McCartney but not tell Dr Tomasiello on either 1 September or 29 September 2012. [53] Dr Shaw said that in the majority of cases meniscal tears, excepting degenerative tears, are trauma related. Further he said that patients nearly always can tell when the injury happened and they can usually give a definite history of the event that caused the tear and of the subsequent symptoms. Shaw said in his report that Carr developed chronic medial right knee pain which he explained in his evidence meant significant pain extending for three months from the date of injury. [54] Dr McCartney favoured a conclusion that the injuries to Carr's knee arose from a traumatic event, while on the history given to him by Carr, Dr Houston opined that the injury may not have involved a single traumatic event but a series of small events or insults occurring over time. In this latter scenario only minor pain may have been experienced initially with the onset of significant pain coming at a later time, or even pain being experienced intermittently. However in the end result Carr did not maintain that his injury resulted from a series of smaller events, but on a single traumatic event occurring on 14 August 2012 (including the first and second slips). [55] The medical evidence is to be contrasted with Carr's evidence about how he injured his knee and when he first experienced pain or knee dysfunction. The inconsistency in his version of events is significant. In the first instance between 14 August and 8 October 2012 there did not appear to be any knee pain as referenced by a failure to report an injury on 14 August, his normal presentation after the high tide event in the view of co-workers, his good condition on 30 August when he reported to Watson at WorkCover, and his failure to report any knee pain to WorkCover, Graham, Walsh, Tomisello and McCartney. In the second instance when Carr reported knee pain on and immediately after 9 October 2012 he said that his knee pain was attributable to his antalgic gait and his use of stairs. In the third instance on and immediately after 5 November 2012 Carr was not able to attribute the right knee injury to any particular event and generally suggested that the injury was related to slips at work or to a series of an insults. Finally when Carr lodged his 6 December WorkCover claim he decided that his injury was attributable to a particular traumatic event at work on 14 August 2012. [56] In terms of the onset of pain, Dr Shaw said that he would expect a close association between the traumatic incident and the onset of pain. In Carr's case he said that Carr developed chronic knee pain at the time of the injury. Dr McCartney said that if the meniscal tear occurred at the same time as the other tears shown on the MRI, these injuries are accompanied by acute pain, swelling and dysfunction of the knee. It -- 14 of 16 -- 15 follows that if the injury had occurred on 14 August 2012, Carr would have been expected to seek treatment soon after the alleged injury was sustained. [57] Carr provided a series of different accounts about when and how the knee injury was sustained. When Dr Tomasiello issued a workers' compensation medical certificate on 15 October 2012 he stated that Carr was suffering from effusion to the right knee and that the injury occurred over a period of two to three months. The worker's stated cause of injury included in the certificate was to the effect that Carr had trouble negotiating steps at work because of his right achilles tendinitis. Hence at this point in time Carr is saying his injury occurred over time and that it developed as a result of having to negotiate steps with his achilles problem. On 5 November 2012 he told Dr McCartney that his right knee has been swelling and locking up and that he was having difficulty negotiating stairs. He said that his abnormal gait was putting pressure on his knee and that he first noticed these symptoms in August 2012. On 8 November 2012 Carr told Dr Houston that he developed knee pain sometime after he commenced his suitable duties program and that he was unclear whether he injured his knee at the same time as his achilles tendon. In responding to questions to WorkCover on 19 November 2012 Dr Houston said that injury possibly occurred as a result of slips but that on the history provided by Carr it was difficult to be certain on a specific event. A WorkCover record of conversation dated 22 November 2012 disclosed that Carr said that "he never noticed his knee being sore at the time but then coming off the back of the Achilles repair his whole lower limb has been sore at different times". [58] Hence with Dr Houston, Carr is indicating that the knee pain was present for some considerable time and commencing some time after April 2012; with Dr McCartney he said that he noticed knee pain since August 2012 and with Dr Tomasiello he said that the knee injury occurred over a two to three month period preceding 15 October 2012. Despite these indications it was Carr's evidence in the proceedings that the cause of his knee injury was a single traumatic event occurring on 14 August 2012. [59] While there was some variation in the medical evidence about the timing of the onset of pain and the extent and nature of symptoms, I consider that the evidence supports a finding that significant pain and discomfort including some dysfunctionality in the knee would be expected either at the time of the alleged injury or reasonably soon thereafter, or, more particularly, before 9 October 2012. The evidence of Dr Shaw and Dr McCartney was to the effect that the onset of pain would have occurred on the day of the injury. Therefore it is my view that Carr would have reasonably been expected to have reported or complained about his knee injury on 14 August 2012 or soon thereafter. In some circumstances this failure to report might be excused and perhaps attributed to stoicism or a difficulty or an inconvenience in accessing medical assistance. In Carr's case however the opportunities for him to report his injury to a variety of persons and organisations were numerous. When these considerations are linked to his inability, in the first instance, to determine a single event which caused his injury, a balance of probabilities finding against his position becomes justified. In the circumstances I have concluded that it was more probable than not that Carr did not injure his right knee at work on 14 August 2012. -- 15 of 16 -- 16 [60] The appeal is upheld and the decision of the regulator dated 5 April 2013 is set aside and replaced with a determination that WorkCover's decision dated 2 January 2013 is confirmed. [61] The matter of costs is reserved. -- 16 of 16 --