10
[Extract from Queensland Government Industrial Gazette,
dated 27 March, 2009, Vol. 190, No. 12, pages 236-247]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Workers' Compensation and Rehabilitation Act 2003 - s.550 - procedure for appeal
Alicia Madonna Moore AND Q-COMP (WC/2008/55)
DEPUTY PRESIDENT SWAN / 13 March 2009DECISION
This is an application filed by Ms Alicia Madonna Moore (the appellant) against a decision of the Review Unit, Q-COMP (the respondent) dated 19June 2008 issued pursuant to s.550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
The appellant's claim is centred upon an alleged incident which occurred during 2006 when she was employed by the Paroo Shire Council (the Council) under a Community Development Employment Program (CDEP) in Cunnamulla.
The delay in hearing this appeal is attributable, according to Counsel for the respondent, to the fact that "… there was some confusion. The appellant didn't get the decision until sometime in 2008.". [Transcript, p.1-2, lines 29-30]
The respondent's decision is as follows:
"In all the circumstances of the case, I am satisfied that:
1. The Claimant qualified as a 'worker' at the relevant time; and
2. The Claimant did not sustain a 'personal injury'.
Therefore, I have determined that the Claimant has not sustained an 'injury' in accordance with the provisions of Section 32 of the Workers' Compensation and Rehabilitation Act 2003.
I have confirmed the decision of the insurer, Local Government WorkCare, that the Claimant's Application for Compensation is not one for acceptance.".
The legislation
Section 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.
(2) However, employment need not be a significant contributing factor to the injury if section 34(2) or 35(2) applies.
(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;
(c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to the causing the loss of hearing;
(d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
(e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
(f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to 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.
(5) Despite subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b) the worker's expectation or perception of reasonable management action being taken against the worker;
(c) action by the Authority or an insurer in connection with the worker's application for compensation.
Examples of actions that may be reasonable management actions taken in a reasonable way -
· action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
· a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment.".
Section 108 of the Act states:
"108 Compensation entitlement
(1) Compensation is payable under this Act for an injury sustained by a worker.
(2) However, if a worker's injury is an aggravation mentioned in section 32(3)(b), the worker is entitled to compensation for the injury only to the extent of the effects of the aggravation.
(3) A worker's entitlement to compensation is in addition to the worker's entitlement to sick leave under the Industrial Relations Act 1999, chapter 2, part 1, division 2 or another Act.".
Appellant's submissions
The appellant was employed by the Council in Cunnamulla during part of 2006 as a participant in its CDEP program.
On 22 March 2006, the appellant says that she suffered an injury to her back whilst in the course of performing her work duties. At that time, the appellant says that the duties were that of pushing a wheelbarrow full of sand and shovelling the sand onto a tennis court. In essence, this was the description of events the appellant outlined to her various treating doctors and also to Local Government WorkCare (LGW), around that time.
The appellant's evidence is that the sand weighed approximately 80 kilograms. This weight is questioned by the appellant's supervisor at the time (Mr Hooper) who said that the load was lighter because he had women, rather than men, performing the duties.
During the course of this hearing, the appellant sought to expand upon the description of what had caused her injury. The appellant said that the injury occurred during the course of wheeling the wheelbarrow full of sand and particularly so when the wheelbarrow started to tip to one side and she was attempting to right it. It was at that time that she felt a "big mad pain [which] went straight up my back". [Transcript, p.1-11, lines 57-58]
The appellant said that she consulted Dr Smith on the day of the injury. She said that Dr Smith asked her how her injury had occurred and she explained that she had been working on a CDEP program. She says that Dr Smith was unfamiliar with that program and the appellant had described it as incorporating duties such as "… heavy lifting, like fridge, freezers - like moving people, restumping houses but I specifically told her that I did not carry the fridges. I specifically said that I was actually - my injured [sic] was from the wheelbarrow itself.". [Transcript, p. 1-14, lines 11-15] Dr Smith subsequently issued the appellant with a medical certificate.
Following that, the appellant says she was advised by a physiotherapist (from Cunnamulla) that her claim was one for compensation. When filling out her claim, the appellant says she relied upon the physiotherapist for assistance in completing the details.
After the incident, the appellant says that she worked for the Council in the art room in Cunnamulla for a while. Some debate ensued as to whether the appellant was placed in the art room for the purpose of performing light duties or to commence a traineeship, however, the appellant is adamant that she was not sent there to work under a traineeship agreement with the Council.
The appellant says that she has continued to suffer back pain. While the appellant has sought work this pain has affected the type of work which she can perform.
Respondent's initial submissions
Counsel for the respondent says that debate about whether the appellant's injury occurred on one day or the other, is academic save to highlight some discrepancy in what the appellant advised in her LGW statement and what she now states. It is necessary to establish whether the appellant suffered an injury and that her employment was a significant contributing factor. [Transcript, p.3-3]
The respondent asserts that there are significant inconsistencies in the appellant's version of events. This relates to the information she originally gave to LGW and what is now alleged in this hearing. The inconsistencies go to the following matters:
· The appellant stated in her original LGW statement that she visited a doctor the day after her injury occurred. This was contrary to her evidence in this hearing that she visited her doctor on the day of her injury.
· The appellant said that her injury was caused when she was wheeling her wheelbarrow through a little gate that she was required to go through. In this hearing, the appellant had expanded on her claim by saying that when she had been wheeling her wheelbarrow full of sand, it had tipped and she had to right the wheelbarrow thereby causing injury to her.
· The appellant had said that she had worked in the art room because it constituted light duties. However, in this hearing it had been established that she had worked in the art room under a traineeship agreement.
· The timesheets for days worked with the Council showed that the appellant had worked on the day following her injury. However, in this hearing, the appellant had said that she had not worked on the following day.
Evidence
Mr Gordon Honeysett, the appellant's partner, in his statement given to LGW on 20 July 2006, had said that he had worked for the CDEP program around the same time as the appellant.
Mr Honeysett did not recall the date when the alleged injury to the appellant had occurred, however, he recalled the detail surrounding the incident. He says that he had driven with the CDEP program supervisor, Mr Earl Hooper ("Early Bird") to the tennis courts where the appellant was working. He saw the appellant (and other women) wheeling wheelbarrows full of sand. Mr Honeysett decided to help the women with their work.
He said that the appellant, on that day, may have mentioned to him that she had a sore back. [Transcript, p. 1-55] Later, in evidence, Mr Honeysett stated that the appellant had told him her back was sore on that day when he met her at work. [Transcript, p.1-55] He said that he and the appellant were dropped off at their house at lunchtime during that day and that the appellant did not return to work. She advised him that her back was sore and she had been complaining ever since about her back.
Mr Honeysett said that on the day following the incident, he had delivered the appellant's medical certificate to Mr Hooper.
When questioned about the time at which he visited the tennis courts on the day in question, Mr Honeysett had told LGW that it had been after lunch. In this hearing, he stated that it had been mid-morning. He said given that the incident had occurred some 3 years ago it was difficult for him to recall the detail of all that had occurred.
During the course of giving his evidence, it became apparent that Mr Honeysett did not fully appreciate the nature of the proceedings. He took umbrage at many questions posed by Counsel for the respondent and walked out of the court room during the course of cross-examination.
However, Mr Honeysett did return to give further evidence the following day.
Mr Hooper was the supervisor for the CDEP program during 2006. He recalled the work which had been performed on the tennis courts by CDEP workers in March 2006 and also that the appellant had performed the type of work she had described (i.e. wheeling wheelbarrows full of sand onto the tennis courts) on that day. He said on that day work had commenced just before lunch time and stopped around 2.30p.m. He did not remember the appellant complaining about a sore back on that day. He did not recall advising the appellant about procedures to be undertaken when an injury occurred at work.
He was also unsure of whether Mr Honeysett had approached him about any problems concerning the appellant on that day. Mr Hooper believed that the wheelbarrows had been only half full because the women were wheeling them. He was unsure as to whether Mr Honeysett had sought to help the appellant wheel the wheelbarrow on that day.
Mr Hooper confirmed that the appellant did not return to work after that day. When asked whether Mr Honeysett had given him a medical certificate from the appellant, Mr Hooper said both "He may have done, yes." [Transcript, p.1-86, lines 16-17], and then, "No, I don't think so.". [Transcript, p. 1-86, line 21]
Since Mr Hooper had affirmed that the appellant had not returned to work on the day after the incident, he was asked why the Council had in its possession a timesheet showing that the appellant had returned to work. Mr Hooper's response was:
"The only reason that it would be filled in on Thursday was that it would have been filled in on Wednesday. They do two days and they fill out Wednesday and Thursday on Wednesday. Monday and Tuesday does exactly the same thing.". [Transcript, p. 1-87, lines 33-37]
Mr Hooper conceded that it must have been a mistake on his part that he had not crossed the appellant's name off the attendance sheet for the day following the incident. [Transcript, p. 1-89]
Mr Bhan Pratap (formerly the Deputy Chief Executive Officer of the Council during the period of the appellant's employment) gave evidence that in early May 2006 he became aware that the appellant had suffered an injury at work. He had received 2 medical certificates for the appellant - one in late March 2006 and one in late April 2006. Mr Pratap advised the appellant to get a doctor to provide a workers' compensation medical certificate and the Council would proceed from there with the claim.
Mr Pratap stated that the appellant had told him that she had injured herself and he described her comments as follows:
"… pushing the wheelbarrow at the tennis court, spreading some sand, and that's where she got injured, she didn't explain the details of the incident.". [Transcript, p. 1-69, lines 35-37]