Beard v Q-COMP [2013] QIRC 123

CITATION: Anthony Beard AND Q-COMP (WC/2011/94) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 appeal to commission Anthony Beard AND Q-COMP (WC/2011/94) INDUSTRIAL COMMISSIONER THOMPSON 16 August 2013 DECISION Introduction [1] On 28 March 2011, Anthony Beard (Beard) lodged a Notice of Appeal with the Industrial Registrar pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q-COMP) dated 11 March 2011. [2] The decision of Q-COMP was to confirm the decision of the Insurer to reject the Appellant's Application for Compensation in accordance with s. 32 of the Act. Relevant Legislation [3] The Legislation pertinent to this Appeal is s. 32 of the Act: "32Meaning 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.". Nature of Appeal [4] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant. Standard of Proof [5] The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities". Evidence [6] In the course of the proceedings, evidence was provided by five witnesses. [7] The Commission, in deciding to précis the evidence of the witnesses and also submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety. Witness Lists [8] The witnesses for the Appellant were as follows: • Anthony Beard (Beard); and • Dr Amarjit Singh (Dr Singh). [9] The witnesses for Q-COMP were as follows: • Dr Graham Boyce (Dr Boyce); • Brian Stone (Stone); and • Dr David Shepherd (Dr Shepherd). -- 1 of 7 -- 2 Appellant Beard [10] Beard, a self-represented litigant, gave evidence that he was employed by Cousins Ice Manufacturing (Cousins), a Company owned by Stone, for a period of eleven years and four months and suffered an ankle injury when he fell off a truck on 22 November in 2009. His first impression was that as he had landed on his toes, and may only have sprained his ankle. The incident was reported to the Employer and medical treatment was sought in which medication was prescribed. Beard's evidence was that he took no time off work. The Application for Compensation was lodged on 29 December 2010. [11] Beard provided a number of self-drawn illustrations [Exhibits 2 to 5] to assist with his evidence-in-chief as he suffered from dyslexia and his evidence was that the incident said to have caused the injury was more readily explained with the use of the illustrations. The Exhibits showed the location of the truck, the position of Beard before and after the fall and the areas of his body that was said to have caused him pain following the incident. Note: Despite Beard's evidence that he had suffered numerous injuries to various parts of his body, it was accepted that the injury subject of this Appeal was an ankle injury. Beard had made an Application for Compensation for back and shoulder injures that had also been rejected in May 2011. [12] With regards to medical treatment following the fall, Beard saw Dr Boyce who arranged for x-rays of the ankle. The x-rays did not reveal a broken ankle but indentified a condition of an "osteoarthritis spur". He was provided with a Workers' Compensation medical certificate allowing him to return to work on light duties, however due to his inability to read or write, he returned to normal duties. [13] Beard later consulted Dr Singh who also sent him for x-rays that showed there were two torn tendons. The consultation with Dr Singh was said to have occurred in March or April 2011, more than a year and a-half after he had fallen off the truck. He was given a medical certificate allowing for time off work and had never returned to work. [14] The fall had been witnessed by a person with the first name of David who was unable to be "tracked down" for the purposes of giving evidence in these proceedings. The inability to read and write had prevented Beard completing an incident report. Beard's evidence was that he had verbally informed the Employer of the incident. [15] Under cross-examination, Beard gave evidence that over the course of the employment he had suffered numerous injures including other ankle injures, although he was unable to recall the dates of the previous ankle injuries. [16] It was put to Beard that x-rays ordered by Dr Boyce (subject of his evidence-in-chief) were taken around 20 December 2010, some thirteen months after the incident of September 2009 which was not disputed by Beard, whose only comment was "Well, Dr Graham Boyce was not my regular doctor" [Transcript p. 2-23]. Beard, when pressed, could not recall when he saw Dr Boyce. [17] On injuries to Beard's left ankle, his evidence was that over the years he had probably fallen over at least five times causing problems to his left ankle. Beard conceded that the claim for compensation made in December 2010 was for an injury sustained in 2009. Beard confirmed that in early 2003 he was hit b y a car whilst riding a bike to work, suffering an injury to his leg however he refused to accept that he suffered an ankle injury [Transcript p. 2-27]. A series of questions were put to Beard about medical treatment he had received in 2005 and 2009 from Dr Ahmed Faraz for an injured toe and later ankle. Further Dr Mbachilin saw him in 2009 for a sore ankle and heel from "leg weights". In the course of treatment received from Dr Mbachilin, it was Beard's evidence that x-rays were ordered for his left ankle but they x-rayed his right ankle by mistake [Transcript p. 2-29]. [18] In the period after the incident in September 2009, which is the subject of this Appeal, the evidence of the Appellant was that he continued to walk to and from work which took about forty minutes each way [Transcript p. 2-30]. At no time following the incident did Beard require crutches and the only support he had was "a little plastic thing that I [Beard] put - put inside the shoe" [Transcript p. 2-31]. Beard claimed to have informed Russell Nolan (a full-time Employee) of the incident when Nolan had returned form holidays, as well as informing the boss on the day of the incident. Beard did not accept that he had told Stone of the incident six months after it occurred [Transcript p. 2-32]. Beard confirmed that he had made a claim through Fair Work Australia over wages [Transcript p. 2-33]. -- 2 of 7 -- 3 Dr Singh [19] Dr Singh, a General Practitioner, gave evidence that medical records held by the Practice where he works revealed that Beard has, over time, suffered a range of injuries that include: • chronic back injury; • repetitive strain; • knee injuries; and • left ankle injury. [20] The evidence regarding the left ankle injury was that he first treated Beard on 20 May 2011 for this injury which in his opinion was caused through the nature of physical work undertaken by Beard. [21] Under cross-examination, Dr Singh confirmed that he first treated Beard on 20 May 2011 for his ankle injury and at that time he had the benefit of a Specialist report and the medical notes from Dr Boyce, Beard's previous treating General Practitioner. Dr Singh did not accept that weightlifting activities pursued by Beard had contributed to his condition, maintaining his work had contributed to the injury. [22] Dr Singh was taken to a series of medical notes relating to treatments received by Beard that included: • 17 June 2009 - Dr Ahmed - symptoms - sore low back from doing weights; also sore ankle/heel from leg weights. • 3 November 2009 - Dr Mbachilin - symptoms - reference to lifting weights. [23] Dr Singh continued to hold the view that the work activities of lifting ice were more likely to cause the chronic problem than the weightlifting activities [Transcript p. 2-41]. Dr Singh was unable to put a date on when the injury occurred giving evidence that it was "a matter of fact it's an ongoing problem. It's ten years of repeated lifting weights [at work], not just one particular instance" [Transcript p. 2-41]. Dr Singh did not attribute any injury from Beard's bicycle accident to his current condition which was due to the repetitive nature of heavy lifting at work. The fall from the truck in September 2009 in his opinion was a trigger point as was falling off the bicycle [Transcript p. 2-41]. [24] In re-examination, Dr Singh repeated his previous evidence that Beard's condition was related to the repetitive lifting and was likely to be a repetitive strain injury [Transcript p. 2-42]. Q-COMP Dr Boyce [25] Dr Boyce, a General Practitioner, treated Beard in December 2010 at the time he lodged a claim for worker's compensation. Dr Boyce gave evidence of a consultation on 20 December 2010 which was the first time that he had seen him in seven years. Beard advised that he wanted to make a claim for injuries suffered some two years back and was complaining about his back, left ankle and knee. A search of the Practice's medical records had indicated that Beard had been treated by other Doctors for back and right ankle pain on 3 November 2009 and left ankle pain on 17 June 2009. [26] Dr Boyce sent Beard for an x-ray and ultrasound with the results being viewed on 27 December 2010. Beard, at the time, explained that the wrong ankle (right) had been x-rayed and should have been the left ankle which he had injured when he had jumped off a truck. Dr Boyce thought it was odd that if Beard had a sore ankle, he would put the "other" ankle under an x-ray machine. [27] Dr Boyce gave evidence of issuing a Workers' Compensation medical certificate on 27 December 2010 for an injury to Beard's left ankle, said to have occurred on 2 November 2009. Beard further consulted him in January, February and March 2011. At the last consultation on 31 March 2011, Beard advised he was "wishing" to claim compensation for his neck pain from lifting ice at work. Dr Boyce advised Beard to see the Doctor that had previously treated him for neck pain as a result of lifting weights at the gym. Dr Boyce confirmed that he had given Beard a referral to Dr Shepherd for specialist treatment. [28] Under cross-examination, Dr Boyce confirmed that his diagnosis of Beard's left ankle was of some wear and arthritis in the joint that was the basis of the referral to the Orthopaedic Surgeon [Transcript p. 2-52]. The condition, according to Dr Boyce, could have been due to an injury [Transcript p. 2-53]. -- 3 of 7 -- 4 Stone [29] Stone, the owner of Cousins, employed Beard for eleven years as a packer in the factory with the employment ceasing in January 2011. The business had in place procedures where an incident report was required to be filled out by workers involved in car accidents, truck accidents or any accident at work. Stone had provided instruction to Beard about compliance with the procedures in the course of an interview about a range of other work procedures including food handling and work practices and Beard had signed off and dated a form confirming the discussion. Stone was aware that Beard was unable to read and explained the documentation to him as he went through it. [30] In the eleven years of employment, Beard had only once raised any issue about suffering an injury in the workplace, with that being in the winter of 2010 where he had said words to the effect: "And he's asked me how much money I've spent on machinery maintenance. And I said oh, plenty. And he said well, my body's falling apart. How about spending some money on me" [Transcript p. 2-56]. [31] Stone first became aware of Beard's claim for compensation in November 2010 and as nothing had been said to him, he made some enquiries but could find no-one who had witnessed an incident. At no time had he noticed Beard limping around in the workplace nor did he complain about experiencing difficulties in getting up or down ladders or walking to and from work. [32] Stone's relationship with Beard was okay in that they got on well with no animosity between them. He was a good worker and he had often been told if he had any problems, that Stone's "door was open". [33] In response to a question from the Commission, Stone recalled there had only been one occasion when an Employee had been on workers' compensation in the life of the business. In that case the Employee had slipped over in the cold room, breaking his hip. [34] Under cross-examination, Stone was taken to correspondence he had received from the Fair Work Ombudsman regarding Beard and indicated that his reaction was none of the matters had ever been raised with him despite that his "door was always open". Stone did not accept that Beard had ever come to his office and complained about any injury [Transcript p. 2-60]. [35] Stone denied he had refused to provide Beard with an injury report on the basis that "no incident had been reported to him" [Transcript p. 2-64]. Stone also refuted the position put by Beard that he had been to Stone's office "hundreds of times" about incident reports and injuries [Transcript p. 2-64]. Stone confirmed that Beard had not ever reported to him that he had fallen off a truck and injured his leg on 22 September 2009 [Transcript p. 2-69]. Dr Shepherd [36] Dr Shepherd, an Orthopaedic Surgeon, at the request of WorkCover examined Beard on 11 January 2012. A report [Exhibit 9] was prepared by Dr Shepherd who found that he had an osteochondral fracture of the medial ridge of his talus and that the injury was consistent with the mechanism described by him. There was no evidence of a pre-existing condition and the history provided was that Beard had continued working with his injury for more than a year. Dr Shepherd opined that the symptoms were due to his work-related injury. [37] In evidence, Dr Shepherd believed that the injury was as a result of a fair amount of force such as a fall from a relatively low height or "typically" rolling your ankle so the sole of the foot comes to face in towards the midline. Other causes could be stepping in a small hole or off a gutter. He did not accept that an injury of this nature could be caused by repetitive work practices, but was more likely as a result of a sudden episode of trauma. [38] Dr Shepherd evidenced that someone suffering an osteochondral fracture of the talus would be significantly immobilised in the first few days and typically would require crutches to get around. Pain for such an injury could continue between six weeks to six months after the event. [39] On examination of the x-rays of the ankle, Dr Shepherd was of the view that the injury occurred six to twelve months prior to the x-ray being taken, also the outer limit for when the injury had occurred could be "indefinite" [Transcript p. 3-5]. Dr Shepherd did not expect that following an injury of this type a person would be able to climb up a ladder or walk long distances in days immediately following such injury. -- 4 of 7 -- 5 [40] Under cross-examination, there was a question about whether someone suffering the injury subject to his evidence would be able to work the next day, to which Dr Shepherd replied: "I mean, you can really never say never in medicine, but the typical course after this sort of injury is that people are quite incapacitated and so, by quite incapacitated, I mean they can't take weight on that leg, so they can't take enough weight on their injured leg to get their uninjured foot off the floor, so for them to move around, they need some other way to support their weight to get that other foot off the floor, and that boils down to crutches. And that is the typical course on the day of that sort of injury, so that if you have a mobile fragment, essentially, of the bone in your ankle so that as you move around that fragment moves around, and that disturbs your system, I guess, so most patients they will present as having pain and they'll say my ankle hurts so much I can't use it. Some people don't really report pain per se but they simply can't use that bit. One way or another, if, you like, it's broken and they can't use it, so that yeah, it – you would be significantly incapacitated.". Submissions Q-COMP [41] Q-COMP, in submissions, indicated that the onus is on the Appellant to prove that the injury arose out of, or in the course of, his employment and his employment was a significant contributing factor to the injury. [42] In was conceded that at the time Beard alleges he suffered an injury, he was, in accordance with s. 11 of the Act, a "worker" and further on the medical evidence before the proceedings that he suffered a personal injury in accordance with s. 32 of the Act. [43] There were differing positions regarding the incident described by Beard having occurred on 22 September 2009 and the subsequent injures that he suffered occurred on that particular date which is the date that is nominated in his claim for workers' compensation and in the evidence before the Commission. [44] There were said to be a number of difficulties for Beard in making his claim that were identified as: • he was able to continue to work; • he was able to walk to work and back home; • he was able to climb up a 17 step ladder on the day of the incident; • he did not see a doctor about this claim until 20 December 2010 (15 months later); and • he did not report the incident to the Employer despite claiming that he had visited Stone's office "hundreds of times" about workplace incidents. [45] The Commission had the benefit of seeing Beard in the proceedings and he gave the impression of knowing his rights and of being able to stand up for himself. His evidence was that he informed a workmate after the event, but did not inform Stone who he said was on site that day. [46] On the medical evidence, the suggestion by Dr Singh that the injury suffered by the Appellant was due to repetitive work undertaken by him was put to rest by Dr Shepherd who gave evidence that such an injury would be caused by a severe episode. [47] The evidence for consideration by the Commission is that of Dr Shepherd who said that Beard had an "old injury" that could have been caused in the circumstances as described by him, but Dr Shepherd could not identify a particular date when this could have happened, other than relying on Beard's claim. Dr Shepherd described the severity of such an injury and the typical course that the person would be quite incapacitated and suffer a loss of function. [48] There was no evidence that Beard suffered, at any stage, the level of incapacity as described by Dr Shepherd, begging the question "when did the accident occur that caused the injury?". [49] On all the evidence before it, it was submitted that the Commission could not be satisfied that Beard had proved his case on the balance of probabilities that he suffered an injury on 22 September 2009 in the circumstances of which it is claimed. [50] It was submitted that the Appeal should be rejected and the decision of Q-COMP upheld. -- 5 of 7 -- 6 Appellant [51] There were limited submissions provided by Beard with confusion about the date upon which the injury to his ankle had occurred, including some suggestion that the date of injury may have been September 2010. [52] There was comment of Beard experiencing some difficulty in representing himself in the course of the proceedings. Conclusion [53] In terms of the determination of this Appeal, there were concessions by Q-COMP that Beard, at the time of the alleged incident on 22 September 2009, was for the purposes of s. 11 of the Act a "worker" and in accordance with s. 32(1) of the Act suffered a personal injury. [54] The Commission accepts the diagnosis of Dr Shepherd that the injury suffered by Beard was an "osteochondral fracture of the medial ridge of his talus" and the injury had occurred at least many months before the examination by Dr Shepherd on 11 January 2011. In evidence regarding the time of injury, Dr Shepherd opined that it could have happened "at any period of time longer than six to 12 months" and when pressed in cross-examination for an estimate of an outer limit as to when the injury may have occurred, stated "indefinite". [55] The matter for determination is discrete in that it involves making a finding whether Beard suffered the injury, as alleged, when he fell from the back of a truck on 22 September 2009. [56] The factual matters to emerge in the course of proceedings were: • there was no witness evidence to corroborate Beard's version of the accident; • Beard did not complete an incident report following the incident; • there was no lost work time as a consequence of the incident; • the first medical treatment for the injury was obtained on 20 December 2010; and • the Application for Workers' Compensation was lodged with WorkCover Queensland on 29 December 2010. [57] Beard gave evidence in the time immediately following 22 September 2009 he continued to perform his normal work duties that required him, at times, to climb a step ladder (17 steps) in the course of the working day and that he maintained the practice of walking to and from work, a journey said to take 40 minutes each way. [58] Dr Shepherd, in evidence regarding the aftermath of an injury of the type suffered by Beard, was forthright in stating that he would not expect a person to be able to climb a step ladder, nor undertake walks of short distances, let alone the long distances walked by Beard going to and from work. This type of injury would generally leave the injured person requiring crutches to get around in the days immediately following such injury. [59] There was competing evidence about the reporting of the incident to the Employer on 22 September 2009 although it was uncontested that the Employer did have in place procedures that required an incident form to be completed following any accident that was work-related. Additionally, I accept the evidence of Stone that he had an "open door" policy of which Beard acknowledged that he had gone to see Stone "a lot of times because I had problems". The facts of the matter are that there was no incident report completed by Beard regarding an incident on 22 September 2009. The Commission accepts that the first knowledge the Employer had of the incident was when the Application for Workers' Compensation was lodged on 29 December 2010. [60] The failure of Beard to lodge an incident or verbal report to the Employer on 22 September 2009, his failure to seek medical treatment until 15 months after that day, and the lodgement of the Application for Workers' Compensation, were not helpful in establishing the case for the overturning of the decision of Q-COMP. What was fatal is the evidence of Dr Shepherd, the Orthopaedic Surgeon, that following such an injury, it would have not been possible for Beard to function in the way described by him, particularly as it related to the climbing of the ladder on a daily basis and the walking to and from work. [61] For all intents and purposes, there was no change in the physical capabilities of Beard immediately following 22 September 2009 which would, on the balance of probabilities, make it highly unlikely that the injury as diagnosed by Dr Shepherd had its foundation on that day. -- 6 of 7 -- 7 Finding [62] The Commission, having considered the evidence, submissions and material before the proceedings, finds that on the balance of probabilities, Beard was a "worker" who suffered a personal injury being an "osteochondral facture of the medial ridge of his talus", pursuant to the Act. However, the injury did not occur on 22 September 2009 as alleged, therefore the injury did not arise out of, or in the course of, his employment as claimed. Nor was the employment a significant contributing factor to the injury. [63] The Appeal is dismissed and the decision of the Q-COMP Review Unit of 11 March 2011 stands. [64] The claim for compensation is not one for acceptance. [65] On the matter of costs, Beard is ordered to meet the costs incurred by Q-COMP incidental to opposing the Appeal. Should there be an argument regarding costs, the Commission, on application from either party, would determine the matter. [66] I order accordingly. J.M. Thompson, Industrial Commissioner. Hearing Details: 2013 4, 17 and 18 June 16 August Released: 16 August 2013 Appearances: Mr A. Beard, Appellant. Mr G. Rhead of Counsel, instructed by Q-COMP. -- 7 of 7 --