Cawley v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 35

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Cawley v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 035 PARTIES: Cawley, Matthew (Applicant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2012/131 PROCEEDING: Appeal to Industrial Commission against a decision of the Regulator DELIVERED ON: 18 February 2014 HEARING DATES: 25 and 26 February 2013 17 May 2013 (Employer's written submissions) 24 May 2013 (Respondent's written submissions) 7 June 2013 (Appellant's written submissions) MEMBER: Industrial Commissioner Knight ORDERS : 1. That the appeal be dismissed; 2. That the decision of the Respondent dated 12 March 2012 is confirmed; and 3. That the Appellant pay the Respondent's costs of and incidental to this appeal. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - whether worker suffered an "injury" - whether injury arose out of, or in the course, of his employment - whether worker's employment was a significant contributing factor to the back injury - Legislation s 32(1) and (3)(b) - worker bears onus of proof - balance of probabilities - CCTV video evidence not consistent with worker's claim - 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 -- 1 of 9 -- 2 s 550, s 32(1), s 32(3) APPEARANCES: Mr M. Cawley, the Appellant, in person. Mr A. McLean-Williams, Counsel instructed by Simon Blackwood (Workers' Compensation Regulator). Mr R. Barnes, the Employer, in person. [1] This is an appeal by Mr Matthew Cawley (the "Appellant") pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") against the decision of Q-COMP's Review Unit dated 12 March 2012, which set aside the decision of WorkCover Queensland (the Insurer) to accept Mr Cawley's application for compensation, and to substitute another decision that the application was one for rejection in accordance with s 32 of the Act. [2] On 14 June 2012, the Commission granted leave to appear and be heard for the employer, R&J Labour Hire Pty Ltd, in the proceedings. [3] Since the hearing of this appeal, the Act has been amended to abolish Q-COMP and replace with Simon Blackwood (Workers' Compensation Regulator). Thus, the Regulator is the Respondent in this appeal. [4] The key issue for determination in this appeal is whether the Appellant suffered a personal "injury" namely an injury to his lower back within the meaning of s 32 of the Act. Brief Overview and History of the Appellant's Claim for Compensation [5] The Appellant was employed as a sheet metal worker by R&J Labour Hire Pty Ltd (the "employer") for a period of approximately six years. [6] On 17 October 2011, Mr Cawley lodged a claim for worker's compensation for a lower back injury alleging he had injured himself on the afternoon of 12 October 2011 whilst lifting a switchboard off a workbench and onto the floor. [7] The insurer accepted the Appellant's claim for worker's compensation on or around 22 November 2011. [8] The employer submitted an Application for Review to the Regulator on or around 2 February 2012. [9] On 12 March 2012, the Regulator set aside the decision of WorkCover to accept Mr Cawley's application for compensation, substituting another decision that the application was one for rejection in accordance with s 3 of the Act. [10] It is against the decision of the Regulator the Appellant is appealing. Standard of Proof [11] For the appeal to succeed the Appellant must prove on the balance of probabilities: -- 2 of 9 -- 3  he suffered an injury, being an injury to his back;  the injury arose out of, or in the course of, his employment as a sheet metal worker; and  the Appellant's employment was a significant contributing factor to the injury. Relevant Statutory Provisions [12] "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 - ... (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;" Nature of Hearing [13] The appeal to the Commission is by way of a hearing de novo. It is not an administrative review of the decision from the Regulator from which the decision had been made. Witnesses [14] The Appellant called:  Matthew Cawley  Chris Duncan  Ms Victoria McLelland (osteopath)  Dr Peter Lucas (neurosurgeon) The Regulator did not call any witnesses in these proceedings. The second respondent (employer) called:  Mr Joshua Barnes  Mr Bruce Lincoln  Mr Thomas McAslan  Dr Bradley Schatz (forensic computer scientist) Evidence [15] The Appellant was employed as a sheet metal worker by R&J Labour Hire Pty Ltd for approximately six years. Whilst his employment formally came to end in May 2012, he did not come back to work after making a workers' compensation claim for a back injury in mid November 2011. -- 3 of 9 -- 4 [16] Mr Cawley's evidence is that on the day of the alleged injury (12 October 2011) he arrived at work at his normal start time of approximately 6.30am. [17] At approximately 2.30pm on 12 October 2011 he was working on a switchboard in his normal work area. As he picked the finished box up from the bench and went to place it on the floor he recalled both his back and legs giving way. [18] The Appellant described feeling tingling pain immediately in his lower back and down his legs, all the way to his ankles. [19] A fellow employee, Mr Chris Duncan who worked as a fabricator in another part of the building came to his assistance by taking the box out of his hands and helping him to his feet so he could rest on a milk crate. Mr Cawley's evidence is Mr Duncan then put the switchboard on a trolley and moved it over to the front roller door. [20] Whilst he was unable to remember the date or the time of the incident, Mr Duncan's evidence was that he observed the Appellant lifting a switchboard off a table in the final fit-off area and placing it down to approximately an inch off the ground at which time he locked up and appeared as if he was in pain. [21] Mr Duncan recalled grabbing the board and assisting Mr Cawley by placing it on a trolley after which the Appellant moved out of the area. [22] Mr Duncan's evidence is he would pass through the area where Mr Cawley worked to pick up supplies which were required for the fabrication of steel boxes. [23] The Appellant described the box he was working on as being 600mm high by 400 mm wide by 300 or 400 mm deep. Depending on the materials that are placed inside, the boxes on completion could weigh anywhere between 10kg and 15kg. [24] After the incident, Mr Cawley recalled resting on a milk crate for a while and not doing anything too strenuous until he left at his normal finish time of approximately 3.30pm after which he contacted his usual Osteopath, Ms Victoria McLelland, for an appointment. [25] Mr Cawley confirmed he had previously visited Ms McLelland for treatment for prior back injuries including as recently as 7 October 2011 in relation to an injury which he said had occurred at the same workplace. On that occasion, he said his employer Mr Barnes had offered to pay for his Osteopathic treatment. [26] Ms McLelland was unavailable that afternoon, but the Appellant was able to make an appointment the following day on 13 October 2011. [27] The Appellant awoke the following morning after having a restless night's sleep, drove to work and remained there for approximately an hour and a half at which time he left work and drove to his the Osteopath's practice for his 8.30am appointment. On arriving at the practice, Ms McLelland declined to treat him until Mr Cawley underwent further medical scans to determine exactly what was wrong with his back. -- 4 of 9 -- 5 [28] Under cross-examination Ms McLelland confirmed she first treated the Appellant for mid-lower back pain on 7 October 2011, at which time he had told her he had hurt his back after a lifting incident. The Appellant was also treated by another practitioner (Mr Mark Brown) earlier in the year in the same practice on 1 and 2 July 2010 for his problem in his upper lumbar region. [29] Ms McLelland's evidence was she distinctly recalled Mr Cawley attending her practice on 13 October 2011 due to the fact that it took him a good four or five minutes to walk a five metre distance from the waiting room into her office, during which time he was propping himself up by leaning on the reception desk and chairs as he made his way across the room. [30] Ms McLelland was unable to treat the Appellant on the morning of 13 October 2011 due to the pain he was experiencing and was of the view it would have been very difficult for him to lift, kneel, crawl or perform his normal work duties due to his condition that day. [31] Under cross-examination, Ms McLelland confirmed lifting a piece of material 600 mm wide by 1200 mm long, 6mm wide and weighing approximately three kilograms would have proven to be quite difficult and painful for the Appellant on the day of the alleged injury. [32] After attending Ms McLelland's practice Mr Cawley drove back to work and reported his injury to Mr Grant Craig, subsequently finishing work and signing out at 9.30am that day. [33] Under cross-examination the Appellant agreed there were CCTV cameras peppered throughout the workplace with camera 15 pointing directly into the area where he worked. He agreed the footage he subsequently viewed after the alleged incident on 12 October 2011 did not show him lifting a switchboard down onto the floor and also did not support his claim that Mr Duncan had come to his assistance at the time of the incident. [34] Mr Cawley was of the view the reason the camera footage did not show the incident was because the various cameras in the workplace most likely jumped around to the area in the workplace where there was the most activity. [35] On viewing the footage the Appellant noted that whilst the time clocks at the bottom of the screen indicated a span from 1.43pm until 3.45pm on the day of the alleged incident, the actual footage itself only ran for approximately 49 minutes and further, that had there been uninterrupted footage from camera 15 available for the entire 60 minute period between 2pm and 3pm, it would have been possible to observe the injury occurring (my emphasis). [36] Whilst the Appellant was unable to recall picking up or lifting things in his workplace on the morning of 13 October 2011 prior to his appointment with Ms McLelland, under cross-examination Mr Cawley asserted he did a lot of things at work which caused him pain but that he just carried on and got the job done. -- 5 of 9 -- 6 Specialist Medical Evidence [37] Whilst Dr Lucas had no record of the mechanism of injury as reported to him by the Appellant other than his notes recording a "workplace injury", his evidence was the switchboard incident on 12 October 2011 may well have caused the pain and symptoms associated with L4, L5 and S1 problems in the Appellant's lower back. [38] Under cross-examination Dr Lucas confirmed the Appellant reported he had experienced back pain from time to time. The Video Footage - 12 and 13 November 2010 [39] Mr Joshua Barnes, Managing Director of R&J Labour Hire Pty Ltd and Dr Bradley Schatz, a forensic computer scientist both provided evidence to the Commission in relation to video footage that was recorded in the workplace on 12 and 13 October 2011, which the employer submitted to the Commision in support of its position the Appellant did not injure himself on the afternoon of 12 October 2011. [40] The employer had previously installed 16 CCTV cameras at various locations around the workplace. In a site plan identifying the location of the various cameras (Exhibit 6), camera 15 is noted as being set up in the area where the Appellant worked and also where the Appellant claimed his injury took place. [41] Mr Barnes' evidence was that the the CCTV footage from camera 15 recorded onto a video recording device (DVR). The DVR system uses motion sensing technology to optimize the storage capacity. Mr Barnes' view was the system did not record footage where nothing was happening. That is, if the cameras did not detect movement within a defined period, the video did not record. [42] According to Mr Barnes, the DVR connected to the employer's computer network allowed the employer to download the video footage from the DVR onto a desktop computer as a backup. The time recorded on the CCTV footage is independent of other systems used by the employer in the workplace to record time. [43] By agreement the video footage taken from various cameras spread throughout the workplace at around the time of the alleged incident was tendered (Exhibit 16) during the hearing. The Commission was taken to various parts of the footage on the day of the hearing with a particular emphasis on camera 15 in the Appellant's work area on the afternoon of 12 October 2011 up until 3.45pm, and also the morning of 13 October 2011 commencing from 6.30am. [44] The employer also took the Commission to other footage collected from cameras in other locations at the workplace where it was possible to observe the arrival and departure of cars and personnel in the carpark (including the Appellant and Mr Thomas McAslen) on the 12th and 13th of October as well as the arrival of Mr Bruce Lincoln from the UK on the morning of the 13th October 2011. [45] Mr Barnes provided the Commission (Exhibit 9) with packing delivery dockets, and consignment notes which he submitted were consistent with various deliveries and other activities captured in the video footage of 12 and 13 October 2011. -- 6 of 9 -- 7 [46] Various other examples of staff members performing activities which corresponded to the video footage on 12 and 13 October 2011 were also provided to the Commission by Mr Barnes, however aside from Mr Bruce Lincoln and Mr Thomas McAslan, none were called to provide direct evidence in relation to their activities on these dates. [47] The Commission was taken to footage of Mr Cawley in his work area on the afternoon of the 12th and the morning of the 13th of October 2011. In particular, Mr Joshua Barnes highlighted the Appellant performing his duties with what appeared to be relative ease on the afternoon of 12 October 2011 on or around the time the Appellant claimed his injury occurred, all the way up until his leaving time at 3.30pm, and again on the morning of 13 October 2011 where he can be observed bending and lifting materials. Other footage included the Appellant returning to the workplace via the car park on the morning of 13 October 2011 at approximately 9.17am. [48] Dr Bradley Schatz provided evidence with respect to the authenticity of the video files. His analysis was based on the assumption that the time and date stamps related to the video files were produced by a clock which was materially accurate. [49] In his report dated 13 March 2013, (Exhibit 12) he concluded: "All of the files were verified successfully by the Backup Player software in regard to checking their watermark, and no verification failures occurred. This is consistent with the above video files being produced by the QVS DVR system installed at R&J Labour Hire, and their having remained unmodified since." [50] Dr Schatz's evidence was the video files provided by R&J Labour Hire Pty Ltd were consistent with having been produced by the DVR not having been edited. His explanation in relation to why the actual recording time of the footage was different to the time span shown at the bottom of the footage related to video compression and the tendency for CCTV systems to eliminate unnecessary frames in order to save space. [51] Under cross-examination, he suggested the discrepancy in the actual recording time versus the span of time reflected in the footage material may be reflecting a "bug" or a problem with Windows understanding or reading the DVR file. [52] He submitted it would take hundreds of hours for the average person to come up with a way to circumvent the verification techniques associated with the watermark authentication process, though acknowledged it was always possible that a forgery could be made. [53] Mr Bruce Lincoln's evidence was that he had an appointment at 9.30am with a specialist on the morning of 13 October 2011 (Exhibit 14) and the time and date stamp on the video footage where he observed himself walking to his car on the morning of 13 October 2011 was consistent with the time he recalled leaving work to attend his appointment. [54] Mr Thomas McAslan's evidence was he arrived in Australia on 11 October 2011 at approximately 7.15am (Exhibit 15) and only attended the employer's workplace for -- 7 of 9 -- 8 the first time on the morning of 13 October 2011, having been employed as a part- time draftsman by R&J Labour Hire Pty Ltd. He confirmed the still frames of the footage shown to him by the employer for the morning of 13 October 2011 were consistent with a number of activities he undertook on that day. Findings and Conclusions [55] To succeed in this Appeal, the Appellant must establish on the balance of probabilities that he was a "worker" and further, that he sustained an injury as defined in s 32(1) and s 32(3) of the Act. [56] The Commission is also required to consider the question of whether the pain and discomfort associated with his back injury (whether that be an aggravation or a discrete injury) that the Appellant says he was suffering when he made his application for compensation is causally related to the workplace incident which occurred on 12 October 2011; and further, was the 12 October 2011 incident a significant contributing factor to Mr Cawley's back injury. [57] There is no contest in these proceedings that the Appellant was a worker at the time he made his claim for compensation. [58] With respect to determining if an injury arose out of, or in the course of, his employment as a sheet metal worker; and Mr Cawley's employment was a significant contributing factor to the injury, the Appellant, who was unrepresented in this matter has submitted that the evidence given by himself, Mr Duncan, Dr Peter Lucas, Ms Victoria McLelland and also Dr Bradley Schatz who provided evidence on behalf of the employer, proves on the balance of probabilities the incident took place as he described. [59] Conversely the employer, who was also unrepresented in the proceedings contends that nothing in the video footage supports either the Appellant's or Mr Duncan's testimony in relation to the alleged incident and further, reveals no injury actually occurring, no signs of Mr Cawley resting, no trolley, no 3MP switchboard and no milk crates being present in the area at the time in the manner described by the Appellant. [60] Likewise Mr McLean Williams, Counsel for the Regulator submitted the footage from the CCTV camera 15 did not support the incident as described by the Appellant in that there was no circuit box or milk crate and nor did Mr Duncan do any of the acts described either by himself or the Appellant. The Regulator also submitted there is no evidence the video footage was doctored, or defective. [61] Based on the evidence of both Dr Lucas and Ms LcLelland, it is clear the Appellant has sustained a back injury, however it is my view the Appellant has not discharged his onus in proving, on the balance of probabilities that the decision of the Regulator should be rejected, and the Appellant's claim should be one for acceptance by the Commission. [62] There is simply not enough evidence before the Commission to support the Appellant's assertions he was injured on the afternoon of 12 October 2011. In support of his version of what transpired on this day, Mr Cawley provided a detailed -- 8 of 9 -- 9 account of his activities in relation to his completion of a switchboard, his subsequent manual transfer of the box down to the floor from the work bench followed by the assistance of Mr Duncan after he felt pain in his back and legs. [63] Regrettably, the video footage provided by the employer does not support this version of events. Both the employer and the Regulator's submissions are correct in so far as it is not possible to observe the injury occurring in the manner described by the Appellant or Mr Duncan on the nominated date. [64] In particular, the footage reveals Mr Cawley moving with some ease, both in the workplace on the afternoon of 12 November 2010 at or around the time he alleges the incident took place and also on the morning of the 13 October 2011, just prior to the Appellant attending his appointment with his Osteopath who gave evidence the Appellant was barely able to cross the room without holding onto a reception desk and chairs on the morning of his appointment. [65] The Appellant was adamant it would have been possible to see the workplace incident of 12 October 2011 as he described it had we been able to view the full video footage. In this regard I accept the evidence of Dr Bradley Schatz who was unable to find any evidence of tampering with or editing of the original videos supplied to him by the employer. [66] Furthermore, in the absence of any contradictory evidence, Dr Schatz's explanation with respect to such cameras ceasing to record at times of inactivity in the workplace as an explanation for the differences in the time span recorded at the bottom of the footage versus the actual duration of the video footage is also accepted. Orders [67] Accordingly, I make the following orders: 1. That the appeal be dismissed; 2. That the decision of the Respondent dated 12 March 2012 is confirmed; and 3. That the Appellant pay the Respondent's costs of and incidental to this appeal to be agreed or failing agreement to be the subject of a further application to the Commission. The Employer is not at liberty to seek costs from the parties of this Appeal. -- 9 of 9 --