Bognuda v Workers' Compensation Board of Queensland [1993] ICQ 17 (1993) 143 QGIG 587

586 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [6 August, 1993 6 August, 1993] (, I QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 587 #################################################### QUEENSLAND INDUSTRIAL COURT WORKERS' COMPENSATION ACT 1990 Industrial Relations Act 1990 s. 9.2(3) - appeal from decision of industri al magistrate David Kenneth Bognuda AND Workers' Compensation Board of Queensland (No. C6 of 1993) JUST ICE MACKENZIE, PRESIDENT 21 Ju ly 1993 A,:>peal - . Industrial Magistra te - Workers' Compensati on - ln Jury - Finding of Fact Based on Cred ibility of Witne ss Not Set Aside - Appeal Di sm i ssed JUDGMENT On 24 Februa ry 1993 the Industri al Magistrate at Mossman dismissed the applicant's claim for Workers' Compensation. The cla1r,:i was _based on an injury to his r ig ht knee which the applicant sa id had occurred when he sl ipped while getting down from t he back of a truck in the course of his employment as a labourer with the Douglas Shire Council on 10 Feb rua ry 1992. There _were no_witnesses to the incid~nt. The applicant did not re,:>ort 11 1mmed 1ate_l y to th_e foreman with whom, according to t he ev idence, the applicant did not get on. The applicant gave -- 1 of 2 -- 588 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [6 August, 1993 evidence that he had mentioned it to a co-worker, and t he fact that such a report had been made apparently got back to the foreman. It was also re ported to a clerk in t he office by the applicant on ceasing work for the day. The applicant gave evidence that al though the injury did not ca use him to cease work or get treatment he was limp ing on t he day of the incident and the next day. The foreman who was called to give evidence did not obseive this. On 12 February 1992 the applicant sustained a further injury in whic h t he ligaments of his left h and were strained and he su ffe red lacerations to the left hand an d left knee. He was away from work for about two weeks, after which he re turned with a certi fi ca te certi fyi ng him as fit for light duties. He was placed on dut ies such as operating a "stop-go" bat and ke rb painting. He gave evidence that the bending and squatting involved in kerb pa inting caused his knee to be sore. However he did not comp lain about th is to the foreman but there is evidence that he comp lained about the nature of the work to a ganger and sugge sted that the use of a lo ng handl ed brush would make the work easie r. Another employee, Dani el le Collis, gave evidence that the applicant had comp lained that the .bending and squatting involved made h is knee so re. The area in con ten tion in the case is quite narrow. W h en the applicant had seen Dr Chua in cons eq uence of the second inju ry he did not tel l Dr Chua that he had a problem with his right knee. D r Chua's certificate related to h is ha nd. On 16 Ma rch 1992 Dr Chua formed t he opinion that he was capable of return ing to work. Th e applicant di sagreed with this and spoke to Mr Clarke, an overseer, about the performance of light du ties indefin itely. M r Cla rk e told h im that such wo rk was not available in Douglas Shi re Council on a ful l-time bas i s. Then on 17 March 1993 the applicant produced a certificate from Dr Wendy White stat ing that he was unfit for work because of h is knee. M r Clarke gave evidence that the applicant had not mentioned h is knee at any time prior to producing the ce rtificate an d, in particular, on the day before when they ha d spok en about light dut ies . After the applicant had gone on leave without pay for about five weeks he again sought light duties and after some discussion about whether he should res i gn or be dismi ssed, he was dismissed. To comple te the picture with re spect to t he medical evidence there was evidence that the applicant had suffered a serious injury to h is right kn ee in an accident in 1984. The evidence of Dr Mansfield, an orthopaedic su rgeon who first saw the applicant in May 1992, was to the effect that, on the assumpti on that the applicant was tel ling the truth that he had suffered no pain from his knee prior to the 1992 incident, the pain from wh ich he was suffering was the result of the 1992 incident. The Board rel i ed on the applicant's evidence that he had not had any pain from the injury to le ad evidence th at in 1985 he had consult ed an on hopaedic surgeon about discomfort in his knee. The applican t explained that on the bas is that he had intended his sta tement that he had had no trouble wi th the knee to mean that once the inj ury had sett l ed down he had no trouble with it. There was no medical evidence suggest ing that he had consulted doctors between 1985 and 1992 about his knee. The findings reflected in t he judgment of the Industrial Magistrate are the fo!lowing:- The applicant suffered an injury to his right k nee in 1984. He pu t in a report of the injury to the right knee wh ich he sa id was suffered in the co urse of his employment on 10 February 1992. He did no t go to a doctor or take time off work because of that injury. On 12 February 1992 he injured his left hand, left arm an d left kn ee . He did not mention his right knee to the medical practitioner on that occasion. He was put on light duties becau se of his hand injury when he returned to work He was then certified fu ll y fi t to re turn to wo rk but no twithstandi ng that medical practi tioner's opinion he discussed the possibility of stay i ng on light duties with t he overseer. The injury to the right knee was not mentioned to the overseer at that time. After he was told that light duties were not available indefinitely he got a certifi ca te from another medical practitioner that he was unfit for work becau se of his right knee. In May 1992 Dr Mansfield found symptoms consistent with the history given by the applicant. Dr Mansfield agreed that the knee injured in 1984 was mo re likel y to deteriorate t han a knee that had not been injured in that way. T he Industrial Magi strate formed an adverse opinion of the credibili ty of the applicant principally because he had failed to mention the soreness in his right knee to the overseer when he was discussing staying on light duties and because he thought it was inconceivable that he would fail to mention the soreness in the right knee to the doctor on the occas ion when he went to see the doctor about the second injury. The ultimate find ing by the Magistrate is in the fol l ow ing terms:- "The appellant has not satisfied me that he suffered an inj ury on 10 February 1992 arising out of or in the course of his emp loyment." II was clearly open to the Industri al Magi st rate to make find i ngs adverse to the cred ibility of the applicant on the evidence. Dr Mansfield conceded that he had to rely on the truthful ness of the applicant's account of events as to causation in formulating his op i nio n that the inj ury was work related. He a1so conceded that if the applicant's account was not tr ue other possible explanations of the applicant's cond ition such as other damage to the knee at the t ime of the 1984 inj ury were possible. The rea l focus of Mr Murdoch's submissions we re certain remarks made by the Industri al Magi st rate to th e effect that it was "very like ly " and that the "probability" was that the sy mptoms wh ich D r Mans fi el d found in May 1992 were the consequence of a dete riorating knee in consequence of the 1984 injury. The Magistrate al so theor is ed that wh en light duties were no longer available the opportunity for compensation was seized upon. Mr Murdoch submitted that as those propositions we re no t put to t he applicant or 10 Dr Mansfield and w ere not supported by evidence called by the Board the Industri al Magistrate's consideration of the mailer had miscarried. It is true that in cross-examinat ion counsel for the Boa rd put 10 t he applicant that he was n ot suffering from any inj ury to h is kn ee . In view of the evidence from Dr Mansfield such a finding would hard ly have b een open on the evidence. However the question did put the c re dibility of the applicant into issue and in view of Dr Mansfield's concession that there cou ld be ot her causes for t he symptoms that he found if the applicant was n ot tel ling him t he truth as to causation, it is my op inion th at the In dustri al Magistrate's rat ionalisation of the situation is no more than a re flection of his di sbel ief of the applicant's eviden ce that he suffered a substan ti al injury to h is knee on 10 Febr ua ry 1992 and that there was an alternative expl ana tion of Dr Mansfield's findings open on t he evidence. Where a finding of fact based on credibili ty is made by a tribun al of fact, the opponunity for an appell ate tri bunal even upon a re hea ring on the record to substitute i ts view on that iss ue is limited. For ex amp le, in Devries v. Australian National Railways Commission (1993) 112 ALR 641, Brennan, Gaudron and McHugh JJ sa id :- "More t han once in recen t years, this Court has pointed out that a find ing of fact by a tri al judge, based on the credibility of a wit ne ss, is not to be set aside becau se an appell ate court thinks that the probabilities of the case are again st - even st ro ng ly agai n st - that find ing of fac t. If the trial judge's finding depends to any substantial degree on the credibility of t he witness, the fin di ng must stand unless it can be shown t ha t the trial ju dge ' ha s fa iled to use or has pa lp ably misused h is (or her] advan tage' or has acted on evidence wh ich was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly im probable'." In the ci rc um stances there is no basis for disturbing the Industri al Magistrate's decision. The appeal is dismi ssed. Dated this twent y-first day of July, 1993. K.G.W. MACKENZIE, Presiden t. Appearances: - Mr J. Murdoch for David Kenneth Bognuda. Mr Vize, Crown Solic itor for Workers' Compensation Board of Queensland. Operative Date: NIA Judgment - D .K . Bognuda an d Workers' Compe nsation 8oard of Queensland Re l eased: 22 Ju ly 1993 6 August, 1993) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 589 I r •l r -- 2 of 2 --