AT LATROBE VALLEY
WORKCOVER DIVISION
Case No. C11609948
MICHAEL MCGRATH / Plaintiffv
ANDREW & LUCINDA GROMOTKA / Defendant
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MAGISTRATE: / S GARNETTWHERE HELD: / LATROBE VALLEY
DATE OF HEARING: / 5 DECEMBER 2012
DATE OF DECISION: / 20 DECEMBER 2012
CASE MAY BE CITED AS: / MCGRATH v GROMOTKA
REASONS FOR DECISION
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Catchwords: S109 Rejection – right hand/wrist injury – limited claim only.
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APPEARANCES: / Counsel / SolicitorsFor the Plaintiff / Mr N Horner / Maurice Blackburn
For the Defendant / Mr C Miles / Minter Ellison
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HIS HONOUR:
1 Mr McGrath commenced employment as a farm hand/labourer with the defendant at its vineyard on 28 March 2011. He alleges that as a result of using battery operated secateurs on 27 May 2011 he sustained injury to his right hand which caused him to be incapacitated for work from 31 May 2011 to 4 July 2011. Mr McGrath lodged a workcover claim dated 27 September 2011 claiming weekly payments of compensation for the above period together with reasonable medical expenses. QBE Workers Compensation rejected his claim pursuant to S109 of the Act on 3 November 2011 on the grounds that he did not sustain an injury which arose out of or in the course of his employment.
2 Mr McGrath gave evidence that he is aged 31 years and commenced employment with the defendant on 28 March 2011 with the assistance of a labour hire agency. He told the court that he previously worked in various labouring type jobs and on farms. He said that initially his work with the defendant involved tractor driving, cleaning wine barrels and tanks and general labouring tasks. He gave evidence that on Friday 27 May he was required to perform cane cutting tasks using battery powered secateurs to cut the bottom and top of the cane which he would hold in his right hand. He said that he performed this task 8 hours per day over 4 days and after the second day felt soreness in his right hand. He told the court that he complained to the owner, Andrew Gromotka who told him to rub cream into it. He told the court that he continued working and then attended, Mr Shelton, a physiotherapist for treatment on 31 May and subsequently received treatment at the Wonthaggi Hospital and from Dr Sellathurai.
3 Mr McGrath gave evidence that he ceased work with the defendant on 31 May and was “kicked off the property” by Andrew Gromotka because he lodged a workcover claim. He told the court that he ceased receiving treatment in July 2011. He said that since that date he has performed court imposed community work and part time work at Target as a cleaner.
4 In cross examination, Mr McGrath agreed that he has had alcohol and drug issues for a number of years and has criminal convictions for dishonesty. In particular, he agreed that he was imprisoned in 2009 and was placed on a Community Based Order at the Korumburra Magistrates Court on 2 June 2011 for 12 months for a shop theft occurring on 7 January 2011 with conditions that he perform 40 hours of unpaid community work and undergo assessment and treatment for alcohol/drug addiction and psychological/psychiatric treatment. Furthermore, on 5 July 2012, he received a fine with conviction at the Korumburra Magistrates Court for a theft occurring on 16 May 2012 which he subsequently converted to community work.
5 Mr McGrath agreed that the secateurs were operated by a trigger which was easy to operate. He agreed that after he sustained the alleged injury, Mr Gromotka offered him alternative duties working on a computer and lifting netting off the vines but he told the court that he was unable to do those jobs because of his hand soreness. He agreed that he did complain of left arm/shoulder soreness to Mr Gromotka after his right hand became sore which he attributed to using his left hand/arm more because of the injury to his right hand. He also agreed that he subsequently refused to perform other light duties offered because he was experiencing chest pain and that he was unable to work as at 6 June because he was suffering right hand, left hand and shoulder pain and chest pain. Mr McGrath agreed that he removed his caravan from the defendant’s property on 10 June at Mr Gromotka’s request and that he arranged for his brother to assist as he did not have a licence to drive. A DVD taken by Mr Gromotka of that activity was shown in court which indicated Mr McGrath and his brother packing up and taking the caravan from the property. He agreed that the DVD depicted him using both hands without apparent restriction but told the court that he was careful in what he did and his brother lifted the heavier items.
6 Mr McGrath agreed that he did not lodge a fully completed workcover claim for some months after ceasing work and could not do so until he obtained a backdated workcover certificate on 27 September 2011. In cross examination, he told the court that he recalls using the secateurs on Friday 27 May, Monday 30 May and Tuesday 31 May. He agreed that he last saw Mr Shelton for treatment on 28 June. He disagreed with the history recorded in Dr Salithuri’s records that he told the doctor he had been using the secateurs for 3-4 months and told the court that he had told the doctor that he used them for 3-4 days. A statement made by Mr McGrath to Workcover investigators dated 27 October 2011 was tendered. He told the investigator that he had previously experienced pain in his right wrist when harvesting asparagus in Mildura 3-4 years previously when driving a quad bike. He also informed the investigator that he had lost his drivers licence a number of years ago as a result of traffic offences. Mr McGrath also said that he injured his hand pruning the vines over a period of 4 days and that he did not lodge his claim until September as he was unable to obtain workcover certificates until that date.
7 Mr Andrew Gromotka gave evidence that he and his wife are the owners of “Lucinda Vineyard and Wineries”. He told the court that he employed Mr McGrath on 28 March 2011 on a part time basis as a labourer. He said that initially, during the harvest period, Mr McGrath was required to drive the tractor to lay and collect buckets of grapes from the pickers and was also required to clean the buckets. He said that his hours varied from week to week and that he permitted Mr McGrath to reside on the property in his caravan. He described him as a “fantastic worker”. He told the court that when the harvest period ended he was keen for Mr McGrath to stay and offered him a job pruning and removing the nets from the vines. He produced the battery operated secateurs and waist belt for inspection by the court and demonstrated how they operated. He confirmed the secateurs were operated by a trigger mechanism which only required a light touch and estimated the weight of the secateurs to be 800 grams.
8 Mr Gromotka told the court that Mr McGrath did pruning on Friday 27 May and complained to him at the end of the day of soreness in his right hand trigger finger. He estimated Mr McGrath had used the secateurs for approximately 6 hours that day. He told the court he suggested to him that he had general soreness because he would not normally use his hand that way and that he should rest over the weekend. He gave evidence that when Mr McGrath attended on Monday he still complained of soreness and suggested to him after contacting the employment agency who referred him that he should attend a physiotherapist for treatment. Mr Gromotka gave evidence that at approximately 6 p.m. on 3 June, Mr McGrath attended his house when he was about to have tea with his family and gave him a partially completed workcover claim. He said that he told Mr McGrath that he would discuss it with him the following morning and Mr McGrath said; “it wont cost you anything, Workcover will pay”. He told the court that the following day he offered alternative duties to Mr McGrath unclipping the hooks on the vertical shoot positioning nets which he refused to do because he said he was suffering from right and left hand soreness, the latter which he attributed to “making cups of tea”. He told the court that he offered to take Mr McGrath to hospital for treatment but Mr McGrath shut his caravan door in his face and that is when he decided to request that he leave the property.
9 Mr Gromotka gave evidence that he took a DVD of Mr McGrath when he was leaving the property because he was concerned about security having regards to Mr McGrath’s past dishonest behaviour. On viewing the wage records tendered in evidence he told the court that Mr McGrath worked 24 hours in the week ending 28 May and 3 hours for the period 30 May to 8 June. He said that it appeared Mr McGrath only worked 3 hours on 30 May before ceasing work.
10 In cross examination, Mr Gromotka told the court that when pruning you are required to cut at different levels of the vine in an arc motion and it also involves trimming the vine. He agreed that you are required to take the weight of the “gun” in your hand and that on 27 May Mr McGrath performed this task for approximately 6 hours without rotation. He agreed the operation of the secateurs involves repetitive use of the trigger. He told the court that at the end of the day Mr McGrath said to him that, “my hand is a bit sore”. He recalled that on Monday 30 May, Mr McGrath pruned one row and then pulled out loose vines and told him his hand was still sore. He agreed that Mr McGrath attended the physiotherapist on 31 May and that he did speak to the physiotherapist and subsequently offered Mr McGrath alternative light duties but was unaware what medical restrictions had been imposed. Mr Gromotka told the court that he was “surprised” when Mr McGrath lodged his partially completed claim form because he did not consider that a “sore hand” was an injury.
11 Mr McGrath tendered a medical report and certificate from Mr Shelton, Physiotherapist, records from Bass Coast Regional Health (Wonthaggi Hospital) and a medico legal report from Associate Professor Myers, General Surgeon, who assessed him on behalf of his lawyers on 5 July 2012. The defendant tendered a criminal history extract, medical certificates, the DVD taken by Mr Gromotka, medical records from Leongatha Healthcare and a medico legal report from Dr Fraser, Rheumatologist, who examined Mr McGrath on behalf of QBE on 28 October 2011.
12 The initial certificate provided by Mr Shelton certified that Mr McGrath attended on 31 May 2011 for right shoulder and hand pain and that he would be unfit for work from that date until 3 June. A certificate provided by him on 1 July 2011 indicated that Mr McGrath was unfit for work from 3 June to 1 July due to a shoulder and upper back strain. In his medical report dated 11 January 2012, Mr Shelton noted that Mr McGrath attended on 31 May 2011 with right shoulder, forearm and hand pain with a history being given of continuous use of an electric shearer at work. He reported that Mr McGrath had pain and weakness of the movements in the right shoulder, forearm and hand and diagnosed probable rotator cuff pathology. Mr Shelton was of the opinion that using the shearer all day was most likely to have put strain on his shoulder and forearm. He also expressed the opinion that his incapacity was very likely as a result of that work. Mr Shelton noted that he last saw Mr McGrath on 28 June 2011.
13 The records of Bass Coast Regional Health indicate that Mr McGrath attended outpatient physiotherapy on 4 July 2011, with pain in the right hand and left arm for a period of 6 weeks. The record indicated that objectively Mr McGrath had right wrist, hand and left shoulder muscle weakness. The records indicated he was given physiotherapy and strengthening exercises for the next 6 weeks and then he may be fit to return to light duties on a part time basis.
14 The records of Leongatha Healthcare indicate that Mr McGrath attended the clinic since 1999 for various medical conditions including; groin pain, neck pain, drug, alcohol and psychiatric issues. The records indicate that Mr McGrath attended on Tuesday 7 June 2011 with RSI to the right hand for which he was seeing a physiotherapist and left armpit pain from using his left side more. The records also indicate that he was taking nurofen 3 times per day and on examination there was slight tenderness in the shoulder muscle area. The next relevant entry was recorded on 28 June 2011 after Mr McGrath attended the clinic on 10, 16 and 23 June for other issues. On 28 June the records indicate he attended because of left shoulder pain which was “slightly better”. Mr McGrath also attended on 8 August requesting a workcover certificate which was subsequently provided by Dr Sellathurai when he attended the clinic on 27 September 2011 and which certified incapacity from 31 May 2011 to 4 July 2011. The doctor recorded a history that Mr McGrath had been using the electric secateurs for 3-4 months and then developed pain in the right hand.
15 Associate Professor Myers obtained a history from Mr McGrath on 5 July 2012, that he developed right hand pain following pruning of grapevines over 4 days. After considering reports and certificates from Mr Shelton, Dr Sellathurai, Dr Toohill and Dr Fraser, Associate Professor Myers diagnosed that Mr McGrath sustained a soft tissue injury to the right hand as a result of excessive use of the hand in his work activities in May 2011. He also noted that because of evidence of slow circulation into both hands it is suggestive of Mr McGrath having a predisposition to complex regional pain syndrome underlying the condition. He also noted that he was “surprised” by Dr Fraser’s comments that “the diagnosis of repetitive strain injury was discredited many years ago”.
16 Dr Fraser obtained a history from Mr McGrath on 28 October 2011, that he developed tightness and soreness in his right hand on 27 May as a result of using electric secateurs to cut canes. Mr McGrath told him that he reported the problem, applied deep heat and continued working but after 4 days his hand was painful and swollen. After obtaining a history and conducting an examination, Dr Fraser expressed the opinion that Mr McGrath did not sustain a work related injury. He stated that there was no evidence of any ongoing condition and based on the physiotherapy report dated 4 July 2011 (from Mr Inagianti at Bass Coast Regional Health) did not convince him that there was ever a significant condition. He also noted that he shared the employer’s concerns (letter from employer dated 6 October 2011 which was not tendered) regarding the validity of the claim. Dr Fraser also noted that; “The concept of RSI as certified by his treating general practitioner in the undated certificate of incapacity is of course a “diagnosis” which was discredited many years ago”.