Dunbar v Q-COMP [2012] QIRC 480

CITATION: Neil Dunbar AND Q-COMP (WC/2012/5) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003- s. 550 - appeal to commission Neil Dunbar AND Q-COMP (WC/2012/5) COMMISSIONER BROWN 19 December 2012 DECISION [1] Mr Neil Dunbar (the Appellant) filed a notice of claim for damages as a result of injuries to his right shoulder. The claim was subsequently amended by the addition of an injury to his left shoulder. The claim was rejected by WorkCover. [2] By decision dated 13 December 2011, Q-COMP (the Respondent) rejected the Appellant's review application and confirmed the decision of WorkCover to deny the claim. While the Respondent accepted the Appellant had a right and left shoulder condition, they did not accept the condition arose out of or in the course of the Appellant's employment or that employment, was a significant contributing factor. [3] The claim was for damages pursuant to the Workers' Compensation and Rehabilitation Act 2003 (the Act), the threshold matter for determination here is, whether or not the Appellant sustained an injury as defined by s. 32 of the Act. Legislation The relevant parts of s. 32 of the Act states: "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- (a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; (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; … (4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. …". [4] The Appellant's employment required him to perform a range of manual tasks, some of which were accomplished with the assistance of mechanical devices. According to his evidence the Appellant:  Was employed for about five years up to October 2010;  On a daily basis he performed a range of manual tasks requiring the use of his arms and shoulders including the operation of a pulley;  Noticed niggling discomfort in his left shoulder in October 2008;  Saw Dr Mitchell in March 2009 regarding his left shoulder (T1 P50 L38-40);  Was given two injections (cortisone) which provided relief;  Was referred to physiotherapy because of pain;  First noticed right shoulder problems in about February 2009;  Didn't seek treatment because he mistook it for a recurrence of his left shoulder problem (T1 P51 L1-42);  Got his shoulders mixed up;  Didn't act on the right shoulder problem because the left shoulder treatment didn't work out;  Felt pain in his left shoulder from June 2009 until 2012;  In June 2009 he assisted others to lift a weight following an industrial accident and felt no pain; -- 1 of 8 -- 2  Believed the absence of pain was due to cortisone;  Saw Dr Mark Robinson on 14 June 2011 and told him his left shoulder was ok and causing no pain (T1 P57 L40);  Left shoulder pain developed since June 2011;  Didn't seek a workers' compensation certificate in February 2009 because he believed he "was never supposed to put a workers' compensation claim in" (T1 P58 L15-18) as the company would pay by cheque;  Lodged a workers' compensation claim for stress and subsequently dropped it at the request of Stephen Coe (former CEO - Coe Drilling);  Believed the company would put somebody else in his job if he didn't drop the claim;  Re-stated his confusion between the left and right shoulder pain, the transcript records: "So you couldn't tell which side of your body the pain was coming from, is that what you're saying?-- No, I'm saying it was two years earlier that I had the pain in my shoulder so I just - just forgot all about it. I just thought, it's the same pain, it's the same symptoms and the same - exactly the same pain". (T1 P60 L35-40).  The right shoulder pain was present in February 2009 but not mentioned to the doctor as it wasn't that bad;  It became worse after he left Coe Drilling;  Related a number of psychological symptoms to his general practitioner (GP) on 14 October 2010;  Didn't raise right or left shoulder problems with his GP at this time;  Made a WorkCover claim for anxiety and stress;  On 28 October 2010 he visited his GP and reported he'd left his employment and was planning on going to Asia. He requested a WorkCover certificate for a psychological injury and made no mention of shoulder problems in the subsequent WorkCover application dated 25 October 2010;  On 4 November 2010 the Appellant visited his GP and requested another WorkCover certificate, not related to any shoulder injury (T1 P64 L20-35);  Visited Thailand from 28 October 2010 to January 2011;  Experienced shoulder pain whilst in Thailand;  Returned from Thailand on 6 January 2011;  Went to GP and reported regarding his shoulder problems on 23 February 2011 and  Lodged the shoulder related WorkCover claim after learning of the rejection of the stress related WorkCover claim (T1 P67 L1-10). [5] The Appellant gave evidence of having flown to Thailand. His evidenced included:  He had luggage, but not checked baggage, as he had hand luggage;  He didn't put hand luggage in the overhead locker because "I didn't take any" (T1 P69 L3);  The Appellant then stated that he did take a case, but there was nothing in it (T1 P69 L8-9);  The suitcase had wheels;  Prior to leaving Coe Drilling, he'd told others of his plan to take a year or so off and then resume working and  He denied wanting to fund the time off with the proceeds from his WorkCover claim; [6] Further in the Appellant's evidence, he said:  He Saw Dr Chiu in February 2011 regarding his right shoulder but didn't mention any specific incidents (work related) which might have contributed to the condition;  The Appellant saw Dr Duke on 3 June 2011 and told him his problem with his shoulder was only on his right hand side;  He also told Dr Duke that is left shoulder had never given him any problems;  Was shown records by Dr Duke indicating previous left shoulder problems/treatment, despite this, he insisted to Dr Duke the problem was only in his right shoulder thus: "I told Dr Duke they were getting mixed up with the shoulders. I said I didn't realise it was both my shoulders, that's what I said to doctor". (T1 P74 L37-40)  Co-worker Margaret McMahon occasionally spoke to him regarding his frozen shoulder;  The Appellant spoke to Ms McMahon about his cortisone injections and how it had freed his shoulder;  He sent an email to Ms McMahon on 21 October stating he was leaving due to stress (Exhibit 4);  On 25 October 2010 he lodged an anxiety and stress claim with WorkCover;  He stated that shoulder pain was at times so severe it prevented him stirring his tea; -- 2 of 8 -- 3  He also said that he went fishing occasionally but not when the shoulder pain was severe;  The Appellant attributed his shoulder injuries to lifting a weight, with others, after an industrial accident in 2009 and also using a pulley to assist him in his daily work duties and he didn't report the injury or pain as it was masked by the drug cortisone (T1 P79 L38 to T1 P80 L58);  Cortisone was only injected into the left shoulder and;  He claimed to be experiencing pain in September 2010 in both shoulders; [7] Mr Cameron Coe's evidence included:  He worked for Coe Drilling for six years, three of which he worked with the Appellant;  He had no beneficial ownership or interest in Coe Drilling other than as an employee;  The Appellant had once told him he'd fallen down a set of stairs after drinking and was hospitalised;  This occurred about six months prior to the Appellant's departure from Coe Drilling;  Following a mishap with some work the Appellant left work saying he was sick and never returned;  He had no further contact with the Appellant  The Appellant never reported any injury to him and he (Cameron Coe) was not in a position where he would usually receive such reports;  In June 2009 he was pinned under a crane in a workplace accident;  Stephen Coe and two others attempted to lift the crane unsuccessfully;  It was ultimately removed with the aid of an excavator;  The Appellant wasn't involved in the manual lifting but was present having arrived from another part of the factory;  The work performed by the Appellant was repetitive, 60% of the Appellant's time was spent making "subs";  The Appellant would do less than four or five of these (subs) a day and  The repetition was repetition of the whole sub making process, not repetition such as one might find on a production line. [8] Dr Mark Robinson, an orthopaedic surgeon specialising in hand and upper limb surgery, prepared a medico-legal report dated 4 July 2011 (Exhibit 6). The report included:  He saw the Appellant on 14 June 2011 and during the appointment performed a clinical examination;  The Appellant didn't recall any single specific event which related to the onset of shoulder symptoms;  The Appellant noticed "increasing discomfort over the anterolateral aspect of his left shoulder and down his left arm";  The Appellant had undergone medical treatment from February 2009 including two steroid injections to his left shoulder which provided him with short term symptom relief but no lasting pain control;  The Appellant told him of right shoulder pain starting in February 2010 which the Appellant didn't report to his doctor or the workplace;  The report also stated the Appellant had treatment to his right shoulder after a visit to his doctor in March 2011 and  The Appellant reported his left shoulder was "ok with no pain". [9] Dr Robinson's evidence's also included the letter of instruction to him from Shine Lawyers describing the Appellant's duties as, inter alia:  Manually loading the machines with parts every day;  Leaning over the machine locking it in with the full weight of the load being taken by my (the Appellant's) arms;  Repeating this up to 100 times per day with parts weighing up to 15 kilograms;  This information including the Appellant's claim to have repeated certain tasks 100 times a day was considered in reaching his opinion;  His opinion would change to "some degree" if the task was only performed 10 times a day rather than 100 times;  Dr Robinson opined that the Appellant would have "slightly less" impact on the "development of degenerative damage" in the Appellant's shoulder;  The same opinion was expressed when asked to consider that "sub" making was performed two times per day rather than five times per day as was advised in the letter of instruction;  Dr Robinson believed the Appellant's shoulder appeared to look swollen rather than torn (T2 P4 L35-38);  The letter of instruction included the Appellant didn't report right shoulder problems to his doctor or workplace whilst he was working;  The Appellant told him there was no history of left shoulder problems prior to February 2009 and his right shoulder in 2010; -- 3 of 8 -- 4  Dr Robinson opined that manual workers stood higher chance of rotation cuff type injuries than other groups but cited no authority for this view and  He assumed the Appellant left employment because his occupational role became too physically difficult and he wasn't apprised of the psychological aspects of his resignation (T2 P7 L5-26 and T2 P8 L2-17). [10] The evidence of Ms Lexie Clark included:  She worked in administration at Coe Drilling for four years prior to leaving in August 2010;  Her duties involved responsibilities for documents related to workplace health and safety which included incident forms;  She alleged there were constraints placed upon her as to the completion of certain forms;  The company (Coe Drilling) would prefer to pay people for a few days and help WorkCover premiums down (T2 P29 L29-3) and  Ms Clark recalled the Appellant reporting a shoulder problem to her at work but not exactly when. She couldn't recall further or having contact with the Appellant about an injury prior to her being asked by the Appellant by email to prepare a statement (Exhibit 8) for WorkCover purposes relating to the Appellant's having reported his injury to her at work. [11] Dr Phillip Duke, an orthopaedic surgeon gave evidence both orally and in the form of two tendered reports (Exhibit 9 and 10). Dr Duke was asked to consider whether or not his opinion(s) would change had he been aware of the Appellant's claim to have attempted to lift a heavyweight in June or July 2009 (T2 P35 L11). [12] In his response, Dr Duke noted it appeared the incident claimed wasn't bad enough for the Appellant to seek medical assistance and further noted the Appellant hadn't raised it with him during his examination. He said, the Appellant raised it with Dr Robinson. Both doctors questioned the Appellant specifically about "including" which may have contributed to his condition and the Appellant "didn't know of any". Dr Duke's opinion didn't change (T2 P35 L11-44). [13] The Appellant's claim that of the manual pulley contributed to his condition also did not alter the doctor's opinion. [14] Dr Duke accepted it was possible work could have contributed to the Appellant's condition but remained of the view that this case didn't. [15] The Appellant's claim that the manual pulley contributed to his condition also did not alter the doctor's opinion. [16] Dr Duke accepted it was possible work could have contributed to the Appellant's condition but remained of the view that in this case it didn't. Dr Duke stated: "Yes. And you categorically rule that out in Mr Dunbar's case?-- Well, you must understand that when I saw Mr Dunbar he categorically ruled out any problems at that time, or at any time in the past, of problems with his left shoulder, despite me telling him that I was reading from documents from his GP that indicated that he had. So, okay, I took him at his word; there is not and has never been any problems with his left shoulder. I was just simply reflecting what I was told by Mr Dunbar." (T2 P41 L1-9). [17] Ms Margaret McMahon, a former employee of Coe Drilling, gave evidence of her recollections of conversations with the Appellant regarding her shoulder problem. The Appellant, she said, advised her of the success of cortisone injections in the treatment of his shoulder. [18] She recalled the Appellant demonstrating the positive effects of the treatment by "lifting up his arm" and saying "look its really great, I've got great movement" (T2 P44 L3-5). She didn't recall a conversation with Ms Lexie Clark and others regarding the avoidance of notifications of incidents to keep WorkCover premiums down. She did recall the company would sometimes pay for minor injuries but this was not a practice. [19] Stephen Coe, former CEO of Coe Drilling gave evidence that he was present and involved in attempting to lift the weight from Mr Cameron Coe following the industrial accident and stated the Appellant didn't assist. [20] He gave evidence of the downward pressure required to lift half a ton with the manual pulley stating the weight of this was about five kilograms. [21] He gave evidence that there was no policy which dissuaded the proper reporting of workplace injuries. The use of "chucks" in the sub making process involved tightening and loosening by turning with the arms. [22] Sub making was usually performed twice daily, sometimes once, or sometime more than this. -- 4 of 8 -- 5 [23] The operation of the automatic machine involved the pushing of buttons and the manual machine required the pushing of levers requiring a force comparable to turning a door knob. Conclusion [24] As a witness, the Appellant was unreliable. His evidence was inconsistent, he gave the impression of being overly defensive with a preparedness to exaggerate matters were it suited him. Where his evidence conflicts with that of others, I have preferred the others. [25] During the hearing, the Appellant introduced a new identifiable situation aside from his usual duties which he claimed contributed to his condition which had to that point been described as an over time injury. This new issue was his claimed involvement in attempting to lift a weighty object of a co-worker following an industrial accident. [26] He also claimed that hauling on the chain of a block in order to lift components contributed to his condition. He alleged 60 pounds of pressure was required to move half a ton. [27] In the absence of any verifiable or expert evidence to contrary, I accept the evidence of Stephen Coe that the downward pressure on the chain required to lift a component of the type normally lifted was on average five or six kilograms and the number of times in a day the Appellant would have been required to perform this task was lees than 10 times and usually only about four times. [28] I also accept the evidence of Mr Cameron Coe regarding the repetitive nature of the work. Mr Cameron Coe said 60% of the Appellant's time was spent making a component know as subs. Cameron Coe believes the Appellant would make one or two per day and while it was possible to make four or five Mr Coe stated the Appellant was never that fast (T2 P23 L29-47). [29] I am also satisfied that while the sub process was literally repeated during the course of a shift, the repetition was in no way akin to the type of repletion one might experience on a production line. [30] Regarding the Appellant's claim to have assisted in attempting to lift the component off the injured co-worker, the evidence of Stephen and Cameron Coe is preferred. Cameron Coe was the worker pinned beneath the component and Stephen Coe was also present during the unsuccessful attempt to manually lift the weight. Both stated the Appellant whilst having come into the area in question, after the incident, didn't physically help lift the offending weight. In any event, prior to giving evidence in this case the Appellant didn't mention any adverse outcome to him from this to anyone. [31] The Appellant claimed the employer had a practice of dissuading employees from reporting injuries and making WorkCover claims, yet in cross-examination, the transcript records the following: "With either of your shoulders, do you?-- No. No?-- No. First report of pain?-- Yeah. Is in early 2009 and that's your left shoulder?-- Yeah. Yeah. No report of that being anything to do with work?-- No. And that's resolved by your injections?-- Yes. And you don't report any more instances of pain to your left shoulder?-- Yeah. After about June of 2009?-- I told Stephen Coe about my shoulders and Stephen Coe knew all about my shoulders, I told - he used to say I was getting too soft and I'm getting old, that's what - that's what he used to say. I put it to you that you didn't report this to Stephen Coe?-- I did report to Stephen Coe. And-----?-- I was told to go in the office and report and I reported to Lexie Clark in the office, and Margaret McMahon. They all knew about my shoulder. They all knew about your shoulder?-- Yeah. Which shoulder?-- Shoulder. -- 5 of 8 -- 6 Which shoulder?-- Left shoulder, right shoulder. You said they all knew about your shoulder?-- Yeah. Which shoulder?-- My left shoulder in the beginning, yes. Is that the one you reported?-- That's the one I reported to Lexie Clark, my left shoulder. And when did you report that to Lexie Clark?-- Oh, God, I'm trying to think about that now. When I first started getting pains in it, and when I'd been----- So that's back in - that's back-----?-- When I'd been to the doctors and Stephen Coe told me to go and tell Lexie, because there was no health and safety at the time and you had to write it in the book. So that's back in February of 2009?-- Mmm-hmm. And Stephen Coe tells you to go and report it?-- Yes. Right?-- Because I told Stephen Coe I was going - having ongoing treatment at the doctor's with the pains in my shoulder. COMMISSIONER: He told you to report it to Clark?-- He did, yes, which I did. (T1 P109 L50 to T1 P110 L52) No report of that being anything to do with work?-- No. And that's resolved by your injections?-- Yes. And you don't report any more instances of pain to your left shoulder?-- Yeah. After about June of 2009?-- I told Stephen Coe about my shoulders and Stephen Coe knew all about my shoulders, I told - he used to say I was getting too soft and I'm getting old, that's what - that's what he used to say. I put it to you that you didn't report this to Stephen Coe?-- I did report to Stephen Coe. And-----?-- I was told to go in the office and report and I reported to Lexie Clark in the office, and Margaret McMahon. They all knew about my shoulder. They all knew about your shoulder?-- Yeah. Which shoulder?-- Shoulder. Which shoulder?-- Left shoulder, right shoulder. You said they all knew about your shoulder?-- Yeah. Which shoulder?-- My left shoulder in the beginning, yes. Is that the one you reported?-- That's the one I reported to Lexie Clark, my left shoulder. And when did you report that to Lexie Clark?-- Oh, God, I'm trying to think about that now. When I first started getting pains in it, and when I'd been----- So that's back in - that's back-----?-- When I'd been to the doctors and Stephen Coe told me to go and tell Lexie, because there was no health and safety at the time and you had to write it in the book. So that's back in February of 2009?-- Mmm-hmm. And Stephen Coe tells you to go and report it?-- Yes. Right?-- Because I told Stephen Coe I was going - having ongoing treatment at the doctor's with the pains in my shoulder. -- 6 of 8 -- 7 COMMISSIONER: He told you to report it to Clark?-- He did, yes, which I did." (T1 P109 L50 to T1 P110 L52) [32] There were inconsistencies in the Appellant's evidence as to the onset of pain in his left and right shoulders. The Appellant lodged his first claim for damages in relation to his right shoulder on 21 April 2011 and amended it to include his left shoulder on 6 June 2011. The original claim was made more than six months after the Appellant left employment and the amendment of the claim, seven months after leaving employment. [33] Dr Duke's report of 3 June 2011 (Exhibit 9) states: "Examination of the left shoulder showed a full range of movement and no particular problems" (Exhibit 9 P5). [34] Dr Robinson's report (Exhibit 6 P4) states: "The left shoulder is normal" and "DIAGNOSIS: 1. Left Rotator Cuff Tendonitis/Subacromial Bursitis (resolved)". [35] If the left shoulder problem was ever connected to work it:  Wasn't cause for a WorkCover claim at the time and  Is resolved on the medical evidence. [36] I don't regard the left shoulder condition as an injury pursuant to s. 32 of the Act. [37] It is clear the medical evidence regarding the right shoulder of the Appellant establishes the existence of a personal injury. The question for the Commission to determine is the causal connection with work if any. [38] The fact is that the Appellant didn't report it. The Appellant's claim to have mixed up or confused his right shoulder pain with that formerly residing in the left is rejected. [39] The 14 February 2009 is the first appearance of a medical record regarding the left shoulder when the Appellant is treated for what is determined to be a frozen shoulder. From 14 February 2009 to mid 2009, the Appellant has seven visits to Surfers Paradise Day and Night medical centre in relation to his left shoulder only. There are no notations linking the condition to work. Thereafter until the date of his termination, he visits this medical centre on nineteen occasions. These visits are noteworthy for two reasons:  There is no further record of problems in either shoulder and  There is a record of other work related matters in connection with the Appellant's psychological and anxiety issues 9 October 2009 and 14 September 2010 and on 4 March 2010, a record referring to work conditions in connection with an eye problem. This satisfies me that the medical centre was not in the habit of failing to record a connection of a condition with the workplace where it was warranted. [40] This in my opinion doesn't support the causal connection of the left shoulder condition with work as it is reasonable to assume that had the Appellant mentioned a work connection it would have been recorded. I regard it also as supportive of the expert medical opinion that the left shoulder condition had resolved as the left shoulder issue doesn't re-appear until June 2011, in the Appellant's amended statement of claim (Exhibit 2). [41] Considering the Appellant's medical records overall, the Appellant wasn't reluctant to raise issues with his doctors and he didn't raise his right shoulder ever whilst at work and only some months after leaving work and after holidaying for several weeks in Thailand does he complain of pain in his right shoulder. [42] As mentioned, the existence of a condition is established. In my opinion what isn't established, by the evidence or records is a causal connection with work. [43] Given the sequence of events, I prefer the expert appraisal of Dr Duke in whose opinion there was: "… no relationship between this gentleman's rotator cuff tear and his workplace. He has not worked now for 8 months and claims ongoing symptomatology. There is an absence of any work accident and although the workplace is Manual, it is not recognised to be causative to rotator cuff degenerative processes. This forms the basis of my opinion." (Exhibit 9 P6). [44] In his summary, Dr Duke stated: -- 7 of 8 -- 8 "He can't remember any work accidents which may have caused problems. The work environment is a manual working environment. However, there seems to be a reasonably good attempt by the workplace at removing the significant stressors, and there does not appear to be a large number of things that would endanger his shoulder. It is certainly possible that some of the things he did at work would aggravate a degenerative rotator cuff, but I can't see that there is anything in his workplace that has been causative to the rotator cuff tear. It is my opinion this gentleman's rotator cuff tear in his right shoulder relates to a degenerative process in a 56-year-old." (Exhibit 9 P5-6) [45] The Appellant has not convinced me, on the balance of probabilities, his right shoulder condition was caused by or aggravated by work. [46] Having already determined the left shoulder issue against the Appellant, I reject the appeal. D.K. BROWN, Commissioner Hearing Details: 2012 4, 5 and 6 September 29 and 30 November Released: 19 December 2012. Appearances: Mr N. Jarro, Counsel, instructed by Shine Lawyers for the Appellant. Dr M. Spry, Counsel, instructed by Q-COMP for the Respondent. -- 8 of 8 --