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Queensland Industrial Relations Commission |
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: Mackay Regional Council v Simon Blackwood (Workers' Compensation
Regulator) [2014] QIRC 001
PARTIES: Mackay Regional
Council
(Appellant)
v
Simon Blackwood (Workers' Compensation Regulator)
(First Respondent)
Smith, Mark
(Second Respondent)
CASE NO: WC/2012/149
PROCEEDING: Appeal against a decision of Simon Blackwood (Workers'
Compensation Regulator)
DELIVERED ON: 10 January 2014
HEARING DATE: 16 and 17 September 2013
1 November 2013 (First Respondent's submissions)
11 November 2013 (Appellant and Second Respondent's submissions)
18 November 2013 (Respondent's submission in reply)
MEMBER: Industrial Commissioner Thompson
ORDERS: 1. The Appeal is allowed.
2. The Decision of Simon Blackwood (Workers' Compensation Regulator) is set aside.
3. The claim for compensation is not one for acceptance.
4. Costs are reserved.
CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant bears onus of proof - standard of proof - balance of probabilities - Appellant required to establish that the personal injury suffered by the worker did not arise out of or in the course of employment - witness evidence does not corroborate incident said to be causative of the personal injury - determined injury did not arise out of employment - Appeal allowed - decision of Simon Blackwood (Workers' Compensation Regulator) set aside - claim not one for acceptance - costs reserved.
CASES: Workers' Compensation and Rehabilitation Act 2003, s 32(1), s 550
State of Queensland (Queensland Health) v QCOMP AND Coyne (2002) QIC 118
APPEARANCES: Mr S. Farrell, Counsel instructed by Bruce Thomas Lawyers for the Appellant.
Mr F. Lippett, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), First Respondent.
Mr P. Cullinane, Counsel instructed by Richard Timpson Solicitors &
Migration Agents for the Second Respondent.
[1] On 18 April 2012, the Mackay Regional Council (Appellant) lodged with the Industrial Registrar a Notice of Appeal pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the QCOMP Review Unit (Q-COMP) released on 20 March 2012. Since the hearing of the Appeal, a number of amendments have been made to the Act which included the First Respondent to the Appeal being abolished and from 29 October 2013 the new name replacing Q-COMP is that of Simon Blackwood (Workers' Compensation Regulator)(Regulator) who, in turn, becomes the First Respondent to this Appeal.
[2] The decision of the Regulator was to set aside the decision of Local Government Workcare to reject Mark Smith's (Smith) Application for Compensation and substitute a new decision to accept the Application for Compensation in accordance with s 32 of the Act.
[3] On 6 June 2012, Deputy President Swan, pursuant to s 549(3)(a) of the Act, ordered that Smith be a party to the Appeal.
Relevant Legislation
[4] The Legislation pertinent to this Appeal is s 32(1) of the Act:
"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.".
Nature of Appeal
[5] 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
[6] The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
[7] In the course of the proceedings, evidence was provided by twelve witnesses.
[8] The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witness Lists
[9] The witnesses for the Appellant were as follows:
[10] The witness for the First Respondent was:
[11] The witnesses for the Second Respondent were as follows:
Appellant
Bella
[12] Bella, a Pay and Benefits Administrator with the Appellant, gave evidence pertaining to the payroll and timesheet processes utilised in the workplace, including evidence that each work location and job are allocated specific code numbers making it relatively easy to identify where employees were working and what tasks they were undertaking at a given time.
[13] Bella produced timesheets for Smith, Poulson and Hurst for the period of September to October 2009 and was confident the timesheets were the complete records for the period in question.
[14] Under cross-examination, Bella's evidence was that the timesheets made provision to record information relating to overtime, allowances and identify the "plant" an employee was operating in the course of employment. The timesheets [Exhibits 2 and 3] confirmed Smith and Poulson were involved in line marking at or around Blacks Beach on 31 August 2009 with Blacks Beach being adjacent to Eimeo. All timesheets were signed by the individual employee and countersigned by a supervisor.
Lamb
[15] Lamb, employed by the Appellant in the financial services area, gave evidence of the interaction between the financial area and the payroll system, including timesheets. There was a level of data transfer of documents sufficient to allow for reports or summaries to be prepared.
[16] A document [Exhibit 6] was tendered in the course of Lamb's testimony which was an extract of information relating to Smith's employment for the period January to December 2009 indicating the task performed by him in that time period was line marking. The source of the information was given as Smith's timesheets. Further documents [Exhibits 7 and 8] were tendered identifying the numeric codes for tasks and suburbs.
[17] Lamb gave evidence of having investigated the location of Old Eimeo and McHugh Roads at Eimeo and concluded the location was in the suburb of Rural View which was close to the boarder with Eimeo. Work undertaken at that location would be covered by one of the following codes:
[18] Summary sheets [Exhibits 9 and 10] were also tendered in the course of Lamb's evidence relating to Poulson and Bowman with her evidence being that Bowman, in the period of January to December 2009, had undertaken the task of line marking.
[19] Under cross-examination, Lamb conceded that the information contained within the document tendered in the course of her evidence was only as accurate as the timesheets filled out by the workers. In terms of her evidence regarding the intersection of Old Eimeo Road and McHugh Road, the information in question had been found on the "geo air system" and not by a visit to the location [Transcript p. 125]. Lamb had no knowledge in relation to any line markings at that location. Lamb acknowledged that Eimeo was adjacent to Blacks Beach [Transcript p. 127].
Poulson
[20] Poulson had been an employee of the Appellant since 2008, firstly as an operator of a street sweeper and later becoming a line marker. In March 2009 she supervised Smith as he undertook line marking tasks for a period of a month.
[21] In regards to an incident where Smith was pushing a paint machine onto a trailer and jarred his shoulder, she gave the following evidence:
[22] Incident report forms were said to be pink in colour and available in all vehicles and sheds. An injured worker was required to complete the first part of the form and then submit the form to "whoever's the boss". In practice, it is usually the leading hand who receives the form and it is passed on to the supervisor.
[23] Poulson gave evidence regarding her timesheets [Exhibit 3], identifying the codes for plant, task and location. The particular numbers were sourced from the leading hand.
[24] Under cross-examination, Poulson recalled that Hurst was a leading hand in the line marking crew from the end of March to October 2009, although in October 2009 he was away on leave. Poulson testified that McCarthy was a senior ganger for the 2009 year having a supervisory role and was a work colleague rather than a friend [Transcript p. 1-34]. With regards to timesheets, they were filled in weekly based on information provided by the leading hand which included dates and times relating to tasks undertaken in that week. Poulson accepted the accuracy of the timesheets depended on the accuracy of the information provided by the leading hand [Transcript p. 1-35].
[25] On aspects of their work, Poulson denied ever undertaking work without it necessarily being on the job sheet and they only did the jobs that were part of the normal program [Transcript p. 1-36]. In 2009 Poulson was on the line marking crew with Smith and as part of that crew did some work in Eimeo, although she could not recall specific dates.
[26] There was evidence the Wagner paint machine used for line marking in 2009 was a three-wheel machine and it was a one person job to load the machine on the trailer due to toolboxes on the trailer preventing two people accessing the area [Transcript p. 1-37]. Poulson had no knowledge of the paint gun ever being jammed up in the course of loading the pain machine. Smith was described as a hard worker, appearing to be an honest person who had worked in a number of occupations prior to his line marking role. Poulson denied ever being told by Smith that he had a sore shoulder, but conceded in August 2011 she had completed a written statement in which she noted Smith telling her of having a sore shoulder [Transcript p. 1-39]. Poulson's final position was put as not being able to remember one way or another whether Smith had informed her of the sore shoulder [Transcript p. 1-40]. Poulson could not recall whether there was an incident at Eimeo in 2009 [Transcript p. 1-40].
[27] In re-examination, Poulson reiterated her previous evidence that tasks were undertaken as a result of a formal request [Transcript p. 1-44].
McCarthy
[28] An employee of the Appellant for the past 31 years, McCarthy had held the position of supervisor for approximately six years and, during the time of Smith's employment with the Appellant, had the responsibility for supervising his work activities. In 2009 Smith was a line marker carrying out programmed maintenance in accordance with an allocated fixed program. The line marking was generally area specific with an area, for example, being identified as Eimeo, Black Beach and East Mackay or other suburban areas.
[29] McCarthy evidenced that in September/October 2009 the paint machines were of the Wagner brand however he could not recall an incident in September/October 2009 where Smith had injured his shoulder pushing a paint machine onto a trailer, nor Smith ever telling him of such an incident or seeking to lodge an incident report for an injury sustained at work. In 2009, according to McCarthy, every Council vehicle contained an incident form report book which an injured worker was required to complete and hand on to their supervisor. As a supervisor, he had never told an injured worker not to submit an incident report no matter how minor the injury and had he done so his boss would have "jumped all over him". McCarthy identified the various stages of completing an incident report giving evidence of training and instruction being provided to the workforce. Incident reports were lodged with some regularity and in many cases were lodged for minor injuries such as getting splinters or little cuts.
[30] McCarthy recalled supervising Poulson in 2009 and had some recollection of her leaving the crew in August of that year. His evidence regarding timesheets confirmed the use of codes for location and tasks. McCarthy was familiar with the location of Old Eimeo and McHugh Roads which are located in the suburb of Eimeo and would more than likely be accessed by coming through Rural View.
[31] McCarthy gave evidence of signing Poulson's time sheets in September/October 2009 and the requirement to have a supervisor access the correctness of the information contained within the timesheets. At this time in 2009 McCarthy had the responsibility for a crew of 27 employees which was made up of:
[32] The line marking crew was made up of five employees and he had no issue with keeping track with where they were working.
[33] Under cross-examination, McCarthy's evidence was he had knowledge where the line marking crew were each day as a consequence of the work program and of being required to check the timesheets each week [Transcript p. 1-57]. Whilst it was impossible to know exactly how much time was spent on each task, he had "a rough idea of the hours they work" [Transcript p. 1-59]. The area of McHugh and Old Eimeo Roads had the road signage repainted each year [Transcript p. 1-61]. The date upon when the painting was undertaken would be in the ganger's diary. McCarthy described Smith as a "good bloke and good worker" who would get the work done [Transcript p. 1-63]. McCarthy did not accept if he had a busy day he would have encouraged a worker with a pulled muscle not to complete an incident report stating "I'd be dangling one under his nose" asking "why isn't it filled out" [Transcript p. 1-65]. He could not recall a worker being injured and the paperwork not going in [Transcript p. 1-66]. McCarthy was familiar with the Wagner line marking machine and did not accept the paint gun on the side of the machine would jam the whole machine up against the trailer. He gave evidence of an incident of the like having occurred with the gun breaking off [Transcript p. 1-67]. The placement of the paint machine on the trailer was a one person job and if two people were to attempt the task, McCarthy described that as "dangerous with a fair chance someone could get bloody hurt" [Transcript p. 1-68].
[34] On the matter of timesheets, McCarthy accepted the proposition that each of the crew worked out with the ganger or leading hand where they had worked and what tasks were completed, acknowledging he made no enquiries beyond that as to where those workers had been on a particular day [Transcript p. 1-70]. McCarthy recalled a conversation with Smith and Hurst (sometime at the back end of 2009) where it was asked if someone had hurt themselves and had not reported the matter with McCarthy informing them if there was no paper trail, "he's dead in the water" [Transcript p. 1-71]. McCarthy accepted when completing a statement in 2011 he had made no mention of that conversation having forgotten about it [Transcript p. 172]. McCarthy was questioned at length about the process of reporting an injury and completing an incident report [Transcript p. 1-73].
[35] McCarthy refused to accept the line marking crew, upon noticing a sign in poor condition would repaint the sign without it being on their program list [Transcript p. 1-74].
[36] In re-examination, McCarthy gave evidence when checking timesheets he was aware of where employees had worked because they were "on the program" [Transcript 1-77]. In the conversation with Hurst and Smith, there had been no mention of Smith having sustained an injury, pushing a paint machine onto a trailer or a request for an incident form [Transcript p. 1-77]. Areas such as Eimeo were generally worked once a year although if the weather was bad, could be pushed out to 14 or 15 months [Transcript p. 1-78]. There was a chain of command in operation with the Council that was able to be followed if a ganger refused to accept an incident report [Transcript p. 1-78].
Farimbella
[37] Farimbella is currently a supervisor with the Isaac Regional Council, having previously been employed by the Appellant in the period 2005 to 2010 in a number of classifications, including:
[38] At the time of Smith's commencement with the Appellant, he was his direct supervisor. Farimbella gave evidence regarding timesheets for Poulson for the time period September/October 2009 identifying his signature on a number of the documents. At the same time there was a system in place for reporting injuries by way of an incident report on specific forms that were kept in vehicles, sheds and offices which, in the first instance, were completed by the injured employee and handed on to the supervisor or leading hand. If an incident report was not processed at any stage there was a chain of command allowing for the by-passing of the person who had failed to process the form.
[39] In late 2009 Farimbella recalled Hurst was the ganger but could not recall Bowman acting as a ganger and did not think Bowman was capable of leading a crew because he was an elderly gentleman and the crew were much younger. In terms of the reporting structure at the time, Hurst would answer to McCarthy who, in turn, would report to Farimbella. He had no recall of any conversation with Smith in September/October 2009 in which Smith was alleged to have reported suffering an injury to his shoulder pushing a Wagner paint machine onto a trailer. Had such a conversation occurred, his first inquiry would have been about the completion of the paperwork. There was no impediment to a person reporting an incident some time after the injury had occurred.
[40] Farimbella gave evidence of presenting at a toolbox meeting on 19 October 2009 where there had been an agenda item about incidents that had occurred since the last toolbox meeting. There were minutes taken at this meeting and Farimbella was confident the minutes accurately recorded there was no injury raised since the last meeting. At another similar meeting on 30 November 2009 there was no record of an issue being raised by Smith concerning an incident with the paint machine and again he had confidence in the accuracy of these minutes as he had taken the minutes. As the person conducting the meeting, he would have insisted any incident involving any injury raised at the meeting would have been recorded in the minutes.
[41] Under cross-examination, it was confirmed that toolbox meetings occurred at least once a month with minutes kept for all meetings. On incident reports being lodged after an event, Farimbella recalled as a "young fellow" with another employer where he had once worked for a week with an injured shoulder before putting in an incident report [Transcript p. 1-89]. Farimbella conceded in Hurst's absence in late 2009 Bowman may have acted as a ganger. On the character of Smith, he did not put him in the category of someone who was shy and reluctant but accepted he was an unsophisticated person [Transcript p. 1-91].
Dr Mayer
[42] Dr Mayer, a Chiropractor, gave evidence of Smith first presenting to "our" clinic on 8 May 2008 with lower back pain, ongoing neck problems, and difficulty breathing. There were seven visits by Smith in the month following. There was then an absence from the practice until 14 August 2009 when Smith presented with symptoms that included:
[43] Dr Mayer's evidence went to the treatment afforded Smith in 2008 and 2009 (August to December). In March 2011 Smith again presented at practice as an "ONP" (meaning he had not been there for over 12 months) with his complaint being pain in his lower back going to the right knee.
[44] Smith, between March and May 2011, attended the clinic on numerous occasions for treatment and adjustments with Dr Mayer indicating the patient records contained no reference to a shoulder condition.
[45] Under cross-examination, Dr Mayer explained that a torn rotator cuff was not within the expertise of a Chiropractor and usually dealt with by a Physiotherapist [Transcript p. 2-7]. On the failure of the patient record card to reference an injury to the shoulder of Smith, it was acknowledged he assumed a colleague would have noted a complaint by Smith in respect of a right shoulder injury and in terms of his own record keeping he would have noted such a complaint [Transcript p. 2-7].
Homan
[46] Homan, a chiropractor, treated Smith in late 2009 gave evidence that if a person attended his clinic and complained of having right shoulder pain, he would record such a complaint for future reference. The treatment for such a complaint would be in the area of a C5 or C6 adjustment. Under cross-examination, Homan had no recall of Smith from 2009 and indicated that a chiropractor would not be in the best position to treat a rotator cuff tear and it could be dealt with by someone like a physiotherapist [Transcript p. 2-59]. He conceded that if a patient was receiving some spinal manipulation and mentioned in passing having a sore shoulder, a specific entry might not be made into the records [Transcript p. 2-60].
First Respondent
Hurst
[47] Hurst, an employee of the Appellant of some 11 or 12 years (of which six years were in the line marking crew), worked with Smith as his leading hand. McCarthy was known to him having been his supervisor and for a time the Australian Workers' Union of Employees, Queensland delegate. In March and September 2009, he took periods of annual leave with arrangement being made by others for someone to act in his position.
[48] Smith was said to be a worker who put in a hundred per cent all the time. He spoke to him sometime after his return from leave in September 2009 about hurting himself pushing the Wagner up on the trailer. There was no recall of any discussion about an incident report. Hurst gave evidence of the line marking crew working a 12 month program starting and finishing at the same point. At times there are jobs allocated following "requests" and, in 2009, his "boss" would pass them on every morning in the form of a hard copy, with the jobs to be completed within a month. The requests are prioritised into high, medium or low. Hurst was familiar with the intersection of Old Eimeo and McHugh Roads but from his own knowledge did not know whether schools fitted within the prioritised lists.
[49] On the matter of timesheets, it was possible that an employee could be required to complete a request or another job without that job being recorded on their timesheets. The job of repainting the stop sign at Old Eimeo and McHugh Roads would take about an hour to complete and would not necessarily find its way into a timesheet. On loading the Wagner paint machine onto the trailer, the evidence was that it was possible that two people could be required to "push it up".
[50] Under cross-examination, Hurst's evidence was that requests were fitted into the normal program of maintenance and accepted if the crew were working at Sarina they would not travel to Blacks Beach to complete a request. Hurst accepted if timesheets showed a location of Sarina, then he would be confident that a job had not been done "in say Eimeo" [Transcript p. 2-39]. Hurst recalled that prior to taking leave in 2009 there was a request to repaint at Old Eimeo and McHugh Roads [Transcript p. 2-40]. In terms of McCarthy, when he was the union delegate he had in the past given advice to Hurst about matters relating to work. There were times when McCarthy had "brushed off" receiving an incident report, however if he was handed "the pink form", he would act on it [Transcript p. 2-41]. Hurst conceded at toolbox meetings there was a standard agenda item regarding recent safety issues and people would raise matters relating to recent injuries. Had there been a concern held by him about an incident, he would have raised it at a toolbox meeting. He raised no such matter in October or November 2009 [Transcript p. 2-42]. With regards to the completion of timesheets, he filled out work locations on a whiteboard and the crew would take down the details at the end of the week [Transcript p. 2-43]. The timesheets, according to Hurst, reflected with a hundred per cent confidence that a person was working on that day and if a person did not work then the timesheet would reflect the same [Transcript p. 2-44]. Timesheets, once completed, would be handed to the supervisor. If a person ran into difficulty having an incident report accepted, they could sort out their problem by approaching another person in the chain of command. Incident report forms were carried in all Council vehicles and in sheds [Transcript p. 2-45]. Whilst he had experienced issues with McCarthy not wanting to process incident reports, he had always found Farimbella to be approachable and very "alive" to workplace health and safety issues [Transcript p. 247].
[51] In re-examination Hurst confirmed that in 2009 he had given between five and ten incident reports to Farimbella on the basis that at the time, he reported to him rather than McCarthy [Transcript p. 2-47]. Crew members were said to be "pretty good" at filling out forms [Transcript p. 2-48]. It was his experience that not all injuries suffered by employees were raised at the toolbox meetings [Transcript p. 2-48].
Second Respondent
Smith
[52] Currently unemployed, Smith had been employed by the Appellant as a line marker for a period of time that included the year 2009. The ganger in charge at the time was Hurst who was replaced by Poulson when Hurst was on leave in 2009. As a line marker, he undertook the painting of road markings in suburban areas of Mackay. Depending upon the size of the suburbs, the crew would spend between one and two weeks on the repainting activities.
[53] In the second half of 2009 he attended the area of Old Eimeo Road to undertake a job near the school as a result of request. Smith had not been working in the area at the time and believed "a bloke they called Killer" had rung McCarthy about the job although Smith had not talked to "Killer" and could not remember who had instructed him to do the job. He recalled that he and Poulson painted the stop bar at the location near the school. On completion of the task he was pushing the paint machine onto the trailer when the gun hit the side of the trailer and the machine came to a dead stop at which time he "felt a real sharp pain. I heard a bit of a crack. I thought it was bone, but it wasn't" [Transcript p. 1-98]. He was unable to push the paint machine onto the trailer and requested assistance from Poulson to complete the task. Poulson was informed that he had injured his shoulder and he asked her about an incident report form with the suggestion being made by her to talk to McCarthy first.
[54] Smith gave evidence of the paint machine weighing 120 kilograms and of the method used in loading the machine onto the trailer, including how he and Poulson had loaded it on the day he injured his shoulder. He gave evidence that he told McCarthy "a lot of times about hurting my shoulder" and also of raising the matter with Hurst and Farimbella at the depot. He received advice from McCarthy that it was too much paperwork and Farimbella told him not to worry about it as it was too late. Hurst was said to be present at the time of Smith raising the matter with McCarthy and Farimbella.
[55] Smith first sought treatment from a Chiropractor (Dr Mayer) "probably" within days and saw his General Practitioner about three months later having continued to work despite being in agony all the time. Some two years after the incident he underwent an operation on his shoulder through the public health system.
[56] Under cross-examination, Smith denied he had consistently claimed the accident occurred in October 2009 [Transcript p. 1-101] acknowledging his Application for Compensation lodged on 5 August 2011 identified the injury happening in October 2009. Smith stated he had been hounded by a "bloke from Q-COMP" to give a date and only wrote down October 2009 because he was "hounded". Smith went on to state "I have no idea what date I actually injured myself" [Transcript p. 1103]. Smith had sought information from Hurst about when he was on leave in the second half of 2009 because he remembered the incident happened when he was away [Transcript p. 1-103].
[57] He first saw the General Practitioner on 28 January 2010 with Smith conceding it could have been October 2009 the injury occurred as that was in the three month timeframe [Transcript p. 1-104] going on to suggest it may have been four or five months after the incident he first visited the doctor.
[58] On 12 September 2012 Smith completed a Notice of Claim for Damages in which he specified the injury occurring between 1 October 2009 and 31 October 2009 and denied in evidence he had changed the date to between July and December 2009 because he could be in "trouble" [Transcript p. 1-107]. Smith had a firm recollection of the location of the injury as being McHugh and Old Eimeo Roads and was "pretty sure she [Poulson] was next to him" when he injured his shoulder [Transcript p. 1-108]. Smith described how after he had injured his shoulder, he and Poulson had loaded the paint machine on the trailer [Transcript p. 1-108].
[59] Upon Hurst's return from leave in 2009, Smith gave evidence of informing him of injuring his shoulder whilst he was working with Poulson and of wanting to submit an incident report with Hurst telling him to see McCarthy and Farimbella [Transcript p. 1-111]. Smith indicated there was no benefit having Hurst pursue the incident report issue with McCarthy and Farimbella as they had rejected his approaches [Transcript p. 1-112].
[60] Smith, in evidence, recalled visiting the Chiropractor with a "sore back" prior to the injury to his shoulder and of seeing him on numerous times in the period of October 2009 to January 2010. On a number of occasions, Smith alleged he told the Chiropractor of his sore shoulder and was told to "go and see a doctor" [Transcript p. 1-114]. Smith claimed there were no incident report forms in the truck nor did he have access to the forms at the depot [Transcript p. 1-114]. Smith conceded he had not raised the injury to his shoulder at any of the toolbox meetings. The toolbox meetings were not helpful because "you're just being talked down to and just treated like rubbish so you just sat there, and you didn't say a word because if you talked because if you said something, the meeting would go on longer" [Transcript p. 1117]. Smith confirmed attendance at toolbox meetings in October and November 2009. The timesheets were described as "rubbish" although the codes regarding location, tasks and plant were recorded correctly. Sometimes the numbers were not factual in terms of location [Transcript p. 1-119]. There were numerous occasions when a location was entered onto a timesheet which was different to where the work had been done because "that is what your ganger wants you to do" [Transcript p. 1-120]. Smith's evidence was if there was a request to do a job on the other side of town to where you were working you would not enter that job on your timesheet but may on the instruction of the ganger put it on a timesheet the next week [Transcript p. 1-121].
[61] Smith, when questioned about the job at Old Eimeo and McHugh Roads, did not know whether he had entered the job on his timesheet because sometimes if he saw a road sign faded he would paint it [Transcript p. 1-123]. Smith, in terms of a consultation with a Physiotherapist in February 2011, stated it was for treatment having exacerbated his shoulder when loading ramps onto the back of a truck and shutting the tailgate. He was not working with the line marking crew at the time [Transcript p. 1-125].
[62] Smith denied a number of propositions put to him including:
Bowman
[63] Bowman, a casual traffic controller, had previously worked with Smith at the Mackay Regional Council on the line marking crew. On occasions when requested to "fill in" as ganger, he had declined. In terms of work allocation, the crew would be told each morning "where we had to go" and sometimes it was written on the board for the next day. Once allocated an area they would finish all work before moving to the next suburb. Bowman recalled in the second half of 2009 the crew had worked in the areas of Eimeo, Blacks Beach and Rural View.
[64] Bowman did not witness Smith being involved in a work accident around that time but recalled being told at the depot Smith had hurt himself pushing the Wagner up onto the back of a trailer. Bowman's evidence was vague in respect of specific detail, although he did remember Smith having a conversation about the Wagner incident "weeks after".
[65] Under cross-examination, Bowman could not recall exactly when he left the Appellant's employ and did not have memories of specific jobs, and certainly could not recall with any certainty where had had been working (line marking) in late 2009 [Transcript p. 2-16]. Jobs were allocated from people including Farimbella and McCarthy, along with Hurst who would get day sheets from the foreman's office. Bowman's evidence was that each Thursday the crew would meet with the ganger providing the work "codes" for the work undertaken that week and the timesheets would be completed [Transcript p. 2-16]. The codes were accurate in relation to location and he never wrote down a location he knew to be wrong. He had no real recollection of Smith hurting his shoulder and heard about it on the "grapevine" [Transcript p. 2-17].
Leisinger
[66] Leisinger, a former employee of the Appellant, worked with Smith in the line marking crew (occasionally) as well as undertaking a variety of other work. He described Smith as a "good hard worker". Leisinger did not witness, in the second half of 2009, an incident where Smith may have injured himself, giving evidence of Smith informing him of pain in his shoulder the day after it happened. Smith was alleged to have told him he had injured his shoulder doing something with Poulson and may have hurt it on a truck. Leisinger's recall was limited on the incident, however Smith was said to have "complained quite regularly about his shoulder".
[67] On the accuracy of information contained within the timesheets, the evidence was "where they had money in the budget at the time was where we booked our hours" having been told this by McCarthy and Farimbella. The timesheets did not always accurately reflect the location of jobs undertaken in the week.
[68] Under cross-examination, Leisinger's evidence was that he regularly provided false information in his timesheets on the direction of McCarthy. He advised Smith to complete an incident report regarding the injury to his shoulder and told him to see "one of the other bosses because his boss and ganger at the time talked him out of doing it" [Transcript p. 223]. Leisinger acknowledged he had completed an incident report form which he submitted to Farimbella [Transcript p. 2-24].
[69] Leisinger denied having detailed discussion with Smith about his evidence in this matter and could not remember when he had been contacted by him about this matter although he did recall Smith had come to his home [Transcript p. 2-26].
[70] On being told by Smith of the incident said to have caused the injury, the evidence was that he "wouldn't have a clue" when he was told. Timesheet information for line marking was filled in under the direction of McCarthy [Transcript p. 2-27] whilst in the other areas the information was very accurate [Transcript p. 2-28]. Leisinger agreed at best he worked with the line marking crew once a month over a two year period [Transcript p. 2-28]. According to Leisinger, both McCarthy and Hurst were responsible for handing out codes known to be inaccurate [Transcript p. 2-29].
Hannah Smith
[71] Hannah Smith, an Assistant Nurse part way through completing a Bachelor of Nursing Science, had been married to Smith since 2008 and recalled him coming home from work one Friday complaining of an injury to his arm suffered when pushing a paint machine onto a trailer. Smith had continued to complain of pain and attended a General Practitioner in January 2010, about three months after the incident.
[72] Under cross-examination, Hannah Smith accepted that 28 January 2010 was the date of the initial visit to a General Practitioner and to her best estimate, the incident had occurred around September/October 2009. Hannah Smith gave evidence of producing a statement containing her recollections of events, but could not recall when she first saw her husband's Solicitor [Transcript p. 2-55]. Her evidence was that the statement was written in 2012 [Transcript p. 2-56].
Submissions
Regulator (First Respondent)
[73] The submission provided background information regarding the history of the compensation claim by Smith for a right shoulder rotator cuff injury applied for on 9 August 2011. Smith claimed the injury occurred when the Wagner paint machine he was loading onto a trailer hit the side of the trailer and jarred his shoulder. It was Smith's assertion that he reported the injury to Poulson.
[74] The standard of proof is that of on the balance of probabilities with the employer as the Appellant bearing the onus of proving the decision made by the Regulator was wrong, see State of Queensland (Queensland Health) v Q-COMP AND Coyne.[1]
[75] The evidence adduced in the proceedings was not sufficient to persuade the Commission that the decision of the Regulator was wrong with the central issue being whether Smith's evidence, and the witnesses supporting his version, should be preferred over the Appellant's witnesses.
[76] There were some matters of common ground which included:
[77] Smith's timesheets for September/October 2009 were tendered as were those for Poulson and Hurst which, in the case of Hurst, confirmed he was on leave from 31 August to September 2009. None of the time sheets referred to line marking at the intersection of Old Eimeo and McHugh Roads in that period, although the absence of specific reference to that job does not mean the job was not undertaken in September as claimed, particularly when the duration of the job and the issue of requests were taken into account.
[78] Smith's recollection that the job was a request rather than part of the regular maintenance program was confirmed by Hurst in evidence unchallenged. In the course of the trial, a great deal of time was occupied establishing that Smith's assertion of the injury, happening in October 2009, was incorrect when it was obvious that Smith was mistaken and the injury had happened in September 2009 which was confirmed by Hurst's advice being sought when he returned from leave. Hurst had recalled a conversation about the injury in the first week he returned from leave, although in cross-examination he had ultimately agreed he could not really recall when the conversation had taken place, however his best recollection was it occurred in the first couple of days back from leave.
[79] The Appellant had gone to a deal of effort to elevate the timesheets into a perfect record of the line crew's activities, despite knowing there were request jobs not included in those timesheets. Hurst gave unchallenged evidence of seeing a request to paint the stop bar in question and, with a month being the time period to respond to request, it was logical that the job was done in September 2009. The Appellant did not make available accurate diary records which would have demonstrated beyond any doubt when the stop bar was repainted. The only inference reasonably available from the Appellant's concealment is that it confirms the stop bar was painted in September 2009.
[80] Smith's evidence that he reported the incident to Poulson at the time should be accepted in preference to Poulson who was said not to be a witness of truth. Poulson's evidence was challenged around matters including:
[81] On the non-completion of the incident report by Smith, the nub of his evidence that he was rebuffed when he spoke to his supervisors about completing a form at some time subsequent to sustaining an injury, should be accepted. If the Commission accepts Smith's evidence that the incident happened, it should not matter what transpired in relation to an incident report that clearly was not completed. Despite vigorous and expert cross-examination, Smith at no time altered his version of events. The evidence of his wife should also be accepted as she was an honest and reliable witness who recalled being informed by Smith on a Friday afternoon of how he had hurt his arm pushing a paint machine onto a trailer.
[82] A number of witnesses had confirmed Smith was a good worker, not a malingerer, and the likelihood of him fabricating a sophisticated tale to fraudulently obtain workers' compensation was very small, as was the likelihood of him having sufficient guile to ensure he told the false tale to his wife and co-workers. If the truth was not being told, then Hurst and Bowman must have joined a conspiracy to commit a fraud on the Commission which, having regard to the evidence and demeanour of the witnesses, was fanciful.
[83] It was submitted that the principal witness for the Appellant was a person who told demonstrable lies and, in the case of the evidence from the Chiropractors on the failure to make entries to his record regarding shoulder pain, there were reasonable explanations given by each of the Chiropractors in their evidence.
[84] There was no reliable evidence to persuade the Commission that, on the balance of probabilities, the decision maker erred.
Smith
[85] The submissions on behalf of Smith adopted those submissions of the Regulator and, whilst not wishing to expand upon the content of those submissions, it was submitted that there was:
[86] Finally, it was submitted that the appeal should be dismissed.
Appellant
[87] The introduction to the submission identified Smith completing an Application for Compensation on 5 August 2011 for an alleged rotator tear to his right shoulder said to have been sustained at the end of October 2009. Smith asserts that the incident was witnessed by co-worker Poulson and reported to McCarthy (senior ganger) and Farimbella (supervisor). Each of these witnesses rejected Smith's evidence regarding the incident. Smith had nominated 20 June 2011 as the date he was compelled to cease work due to the injury which was 20 months beyond the alleged incident.
[88] The issue for the Commission was described of narrow compass in that the determination is whether or not the incident occurred, as alleged by Smith. It was conceded that Smith was a "worker" as defined under the Act and that the medical evidence demonstrates an injury for the purposes of s 32 of the Act. The jurisdictional consideration is whether Smith sustained the injury in the sense that "employment has been a significant contributing factor to the injury". The evidence was sufficient for the Commission to conclude that the employment was not a significant contributing factor.
[89] The submission dealt extensively with the evidence before the proceedings relying upon the following.
[90] Poulson: Her evidence was that in early September 2009 she became a street sweeper operator and had not performed any line marking work in October 2009. She emphatically denied any incident as described by Smith, nor had she ever discussed such an incident with him. The evidence was that she had never assisted him push a paint machine onto the back of a trailer, nor did she consider it possible for two people to do that job.
[91] Poulson confirmed that incident report forms were freely available and in evidence said "if someone hurts themselves they tell the leading hand and then they get a pink slip" which is then given to the supervisor. According to her evidence, there had never been a discussion with Smith about submitting an incident report for an injury to his shoulder.
[92] There was a denial of the concept that a "crew" would unilaterally undertake an untasked job when they "were just driving around" and, despite her having in an earlier statement indicated there was a discussion with Smith concerning a sore shoulder (which she candidly admitted she could no longer recall), she should be accepted as a witness. The event described by Smith, if it had occurred, would have been a notable one for Poulson.
[93] McCarthy: He was emphatic that no incident as described by Smith had occurred in September/October 2009 and that Smith had never approached him about the incident. Any worker injured was expected to fill in an incident report no matter how minor the injury and in his role McCarthy would complete an incident report about once a month. His evidence around the completion of timesheets and the codes relied upon had established his knowledge regarding where workers were meant to be working in any week.
[94] Under robust cross-examination, McCarthy had remained adamant that if someone in the crew was hurt, an incident report form would be completed and it was submitted that for McCarthy to neglectfully ignore reporting an incident would jeopardise his own employment. McCarthy's evidence should be accepted.
[95] Farimbella: No longer employed by the Appellant, Farimbella was described as "a wholly independent witness" whose evidence was particularly impressive. He gave detailed evidence of the system for reporting workplace injuries and had been a Workplace Health and Safety Officer for a time at the Council. Farimbella had no recall of any conversation with Smith in September/October 2009 where it was reported he had suffered an injury to his shoulder whilst pushing a paint machine onto a trailer and, if such an injury had been reported to him, he would have completed the appropriate paperwork. He had never advised Smith not to put in an incident report because it was "too late", as there was no cut off point for the lodgement of an incident report and it was not a novel situation for an injury report to be made some time after the event. The minutes for the toolbox meetings for October and November 2009 had no mention of the alleged incident and Smith was not regarded as a reticent member of crew in terms of speaking up.
[96] Farimbella, as was the case with McCarthy and Poulson were not in any way adversely affected by Smith's claim and each of them were absolutely consistent in their evidence being there was no complaint made by Smith.
[97] Smith: The evidence of Smith, it was submitted, was exceptionally vague and unconvincing in respect of the occurrence of the injury and what had actually happened as well as being in absolute conflict with Poulson, McCarthy and Farimbella regarding their alleged involvement in terms of:
[98] Smith had conceded that he never filled out an incident report, despite overwhelming evidence demonstrating incident forms were freely available. His evidence concerning when the incident occurred was fundamentally contradicted by both his Application for Compensation and Notice of Claim for Damages. In the course of cross-examination, Smith had recanted his earlier evidence of being pressured by the Regulator to nominate October 2009 as the date of injury. He made a number of concessions including there would have been incident report forms available at the main office and depot.
[99] There were criticisms levelled at Smith's evidence of his exchanges with Farimbella, in particular, the timelines and in general his evasiveness under cross-examination. He was described as a "hopelessly unreliable witness", an unresponsive witness whose position in respect of critical matters chopped and changed as he was challenged. The substance of his case defies common sense and contradicts Poulson, McCarthy and Farimbella's evidence in circumstances where none of those witnesses have reason to lie. It was not credible that each of these witnesses had simply forgotten what would otherwise be a significant event and ongoing series of complaints by Smith concerning an injured shoulder for which they were not responsible. Smith's evidence was simply not credible.
[100] Dr Mayer: Dr Mayer had first seen Smith in 2008 and again when he presented for treatment in August 2009. His practice notes related to various treatments to Smith's spine and significantly there was no reference to shoulder symptoms which Dr Mayer says would have been recorded if complained about, even though it was likely he would have been referred to a physiotherapist.
[101] Bowman: Bowman had not witnessed any incident where Smith had injured his shoulder. However he did recall Smith at some time had told him something about pushing a Wagner on a trailer. Bowman had rejected that location codes were simply made up with his evidence being he would never write down a location he knew to be wrong or sign timesheets unless he believed they were true and correct. Further he would not have not copied something from the whiteboard if he knew it to be wrong.
[102] Leisinger: Leisinger's evidence was said to be hopelessly unreliable and contrived with his sole knowledge of Smith's injury coming from what Smith had told him. The most controversial aspect of his evidence was that the timesheets were fraudulent "almost every time" and that both McCarthy and Hurst had knowingly handed out inaccurate codes every Thursday. This evidence was extraordinary in the circumstances where overwhelmingly the one handing out the codes was Hurst and not McCarthy. Also Leisinger, on his own evidence, rarely worked in the line marking gang at all and it was said he "scrambled" to compensate for his evidence regarding timesheets by suggesting he would be in the line marking shed having a beer. Leisinger's evasiveness in cross-examination was said to be quite remarkable and despite the "wall of obstruction" said to exist with the Appellant, he agreed that he had submitted incident reports himself to Farimbella who had not attempted to talk him out of it. Overall, it was submitted that his evidence was totally unreliable and should be entirely disregarded.
[103] Hurst: Hurst gave evidence of being on leave from 31 August to 28 September 2009 as well as taking leave in March of the same year. He did not witness the incident but recalled having a conversation with Smith where he was advised of Smith hurting his arm when pushing a paint machine onto a trailer. Of significance was his fundamental contradiction of Smith's evidence of a conversation about an incident report relating to the injury. Hurst agreed if a "request" was received then it would be programmed with work in the same area. Hurst agreed that Farimbella would invite participation in toolbox meetings and he would himself normally raise incidents at those meetings.
[104] In terms of timesheets his evidence was you could be 100 per cent confident that a person listed as having worked on a certain day had done so, conversely if a person was not listed as working they had not worked. Incident report forms were readily available and he had never experienced any difficulty in submitting those forms to Farimbella who was an approachable sort of fellow when it came to workplace health and safety issues.
[105] Hannah Smith: Hannah Smith's evidence was said to be of limited assistance given the inevitable affect that her numerous discussions with her husband over the years would have had on her recollection. Her evidence was inherently unreliable.
[106] Homan: Homan gave evidence of record keeping at the chiropractic practice and conceded in cross-examination that it was possible a passing remark about shoulder pain might not be recorded.
[107] Despite a vast amount of documentary evidence, there was not one document to support Smith's assertion that the incident occurred as alleged with his Applicant for Compensation nominating an incident date of late October 2009 and his Notice of Claim for Damages nominating a date in October 2009, yet the chiropractic records between August 2009 and January 2010 made no mention of such injury. His first attendance at his General Practitioner was on 28 January 2010 and in line with Smith's own evidence the October range nominated in the claim documents was correct.
[108] The timesheets before the Commission are clear in that neither Poulson nor Smith performed any line marking in the Eimeo or Rural View areas in September or October 2009 with the year summary showing Poulson last performing line marking in those areas on 12 June 2009 and, in the case of, Smith 20 March 2009. On the last occasion, Poulson and Smith worked on line marking duties (11 and 18 September 2009) the timesheets identified their location as Koumala which was many miles away from the Northern Beaches, indeed South of Sarina.
[109] The suggestion that the Appellant had indulged in "concealment of diaries" was both unsubstantiated and quite outrageous as there had been no evidence elicited that any such diary was in the possession of the Appellant.
[110] In conclusion, it was stated that the three witnesses (Poulson, McCarthy and Farimbella) with whom Smith alleges he interacted with in terms of the incident, all directly contradicted his evidence and, on critical issues, Smith's own witness (Hurst) gave contradictory evidence to that of Smith.
[111] When the following is taken into consideration, the Commission could not be satisfied, on the balance of probabilities, that the incident occurred as asserted by Smith:
[112] It was submitted that the Appeal should be allowed and the decision of the Review Unit be set aside with costs.
Conclusion
[113] In the determination of the Appeal, it was not of contest that at the time Smith alleged he suffered an injury to his right shoulder in or around September/October 2009 he was an employee of the Appellant and therefore pursuant to s 11 of the Act was a "worker". Despite the absence of evidence of a medical nature in the proceedings, beyond that of chiropractic treatments received by Smith, there was acceptance by the Appellant that, for the purposes of s 32 of the Act, Smith had suffered a personal injury leaving the discrete point for the Commission to decide being whether Smith's injury arose out of or in the course of his employment and if his employment was a significant contributing factor to the injury.
[114] An Appeal of this type places the onus of proof upon the Appellant to establish that the Regulator was at error in deciding that the claim for compensation was one for acceptance and in this matter evidence was called from some seven witnesses in an effort to prove, on the balance of probabilities, Smith's injury did not arise out of his employment and his employment was not a significant contributing factor to the injury.
[115] The First and Second Respondents called Smith and four other witnesses to give evidence challenging the case prosecuted by the Appellant.
[116] The following factual matters emerged in the course of the proceedings:
[117] The Appellant, through the evidence of employees Bella and Lamb, tendered documentation of an administrative nature which included timesheets competed and signed by Smith, Poulson and Hurst and countersigned by a supervisor for the time period of September and October 2009. Bella's evidence was through the utilisation of a code process it was relatively easy to identify where an employee was working in terms of location and the tasks they were performing. The timesheets [Exhibits 2 and 3] tendered through Bella's evidence confirmed that on 31 August 2009 Smith and Poulson were involved in line marking around Blacks Beach which was said to be a location adjacent to the suburb of Eimeo. Further examination of Smith's timesheets [Exhibit 2] revealed the locations of Eimeo (code 23048) or Rural View (code 23124) were not areas in which he performed any work in the months of September and October 2009. The two previously mentioned suburbs were identified as the locations that would encompass the McHugh and Old Eimeo Roads job location where Smith alleged he undertook line marking immediately prior to injuring his shoulder when attempting to push the Wagner paint machine onto a trailer.
[118] A similar examination of Poulson's timesheets [Exhibit 3] provided detail of her working in Eimeo on one other occasion in September/October 2009 (29 September 2009) when she performed street sweeping activities. From 18 September to 31 October 2009 Poulson's timesheets record line marking activities occurring only once on 25 October 2009 and this was not in the area of McHugh or Old Eimeo Roads.
[119] In evidence before the proceedings, the accuracy of the timesheet information was challenged, particularly by Leisinger who claimed he had regularly provided false information in his timesheets at the direction of McCarthy. Interestingly, Leisinger worked only spasmodically in the line marking section which limited his knowledge regarding timesheets in that area and his evidence generally was unimpressive. On the other hand, the evidence of Hurst and Bowman was emphatic in that the timesheet process undertaken by the line marking crew was in no way tainted and reflected accurately the locations contained within those records.
[120] In the view of the Commission, the evidence contained in the timesheets is quite critical in determining whether Smith was injured in the course of his employment with the incident in question said to have been witnessed by Poulson. The timesheets fail to support the claim by Smith regarding he and Poulson undertaking line marking in Eimeo in the month of October 2009 or for that matter in the preceding month of September 2009, therefore it follows that Poulson's evidence of not witnessing any such incident is, in all probability, more likely to be the case as opposed to that of Smith and should therefore be accepted as accurate.
[121] On the matter of Smith's failure to complete an incident report form following the alleged workplace incident, the Commission accepts that whilst it is not necessarily fatal in terms of the claim for compensation, the allegations that both McCarthy and Farimbella had actively discouraged him from completing the form, albeit for different reasons, is worthy of scrutiny. The Appellant, in response to these allegations, relied upon the evidence of McCarthy and Farimbella who not only denied any such activity but went further indicating their proactive behaviour in the enforcement of the Appellant's policies and requirements around incident reporting.
[122] In the absence of any evidence to corroborate this claim by Smith with even his own witness in Leisinger giving evidence of having completed an incident report during the period of his employment, the Commission accepts the evidence of the witnesses for the Appellant (McCarthy and Farimbella) that they had no knowledge whatsoever of the incident relied upon by Smith in his claim for compensation and therefore any claim that they actively discouraged him from lodging an incident report form is completely groundless and severely reflects upon Smith's credibility.
[123] On the acceptance of the evidence of Poulson that she had no recall of the incident involving Smith pushing a Wagner paint machine onto a trailer, which is supported by the tendered timesheets [Exhibits 2 and 3] to the extent she along with Smith were not undertaking line marking work in Eimeo in September and October 2009, there is significant doubt that Smith's version of events regarding the causative nature of the injury to his shoulder has standing and with the non-acceptance of Smith's evidence regarding his failure to file an incident report form, the case for the Appellant must be considered as having substantial merit.
[124] Additionally, in the prosecution of the Appeal, the Appellant focussed upon a number of the areas where Smith's Application for Compensation was argued to be deficient, questionable or not supported by evidence. Those areas included:
[125] Whilst the abovementioned matters were the subject of evidence, that raised further doubt over the claim for compensation as a whole, the Commission does not see the need to make any findings on the basis the Commission is satisfied that the Appellant, in the prosecution of the Appeal, has established that the incident said by Smith to be causative of his injury, witnessed by Poulson at McHugh and Old Eimeo Roads in October 2009, could not have occurred as claimed by him.
Finding
[126] It is the finding of the Commission, having considered the evidence, material and submissions before the proceedings, that for the purposes of s 11 of the Act, Smith had the status of "worker" and further that Smith, at a time not known, suffered a personal injury in the region of his right shoulder.
[127] The incident relied upon by Smith as being causative of his personal injury said to have happened when he was pushing a Wagner paint machine onto a trailer at McHugh and Old Eimeo Roads in the presence of Poulson in September or October 2009 is found not to have occurred as claimed by Smith. Therefore his personal injury did not arise out of his employment and his employment was not a significant contributing factor to the injury.
[128] The Appeal is allowed and the decision of Simon Blackwood (Workers' Compensation Regulator) of 20 March 2012 is set aside, and it its place a finding that the claim is not one for acceptance.
[129] The matter of costs is reserved.
[130] I order accordingly.
[1] State of Queensland (Queensland Health) v Q-COMP AND Coyne (2002) QIC 118
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