Worker fails to overturn decision denying compensation after Arbitrator finds he did not suffer a personal injury by accident Worker fails to overturn decision denying compensation after Arbitrator finds he did not suffer a personal injury by accident

Worker fails to overturn decision denying compensation after Arbitrator finds he did not suffer a personal injury by accident

26 February 2020 | Workers' Compensation

A worker alleged he suffered a compensable injury to his shoulder on 7 February 2016, which resulted in severe shoulder symptoms from 26 March 2016, however he worked normally between February 2016 and 26 March 2016, and did not report shoulder symptoms in this period. The worker sought compensation on the basis his shoulder symptoms since 26 March 2016 resulted from the accident on 7 February 2016.

In issue

The decision considers whether the worker suffered a personal injury by accident on 7 February 2016.

The background

The worker was an employee of Alcoa. On 7 February 2016, he was at work driving a truck, and was in a queue waiting for it to be loaded by another employee who was operating an excavator. As the worker's truck was being loaded, part of the excavator's bucket made contact with part of the tray of the truck he was driving.

He reported the collision to dispatch and pulled over. His supervisor, and the employee who was operating the excavator, attended at a security office where the injured worker received medical attention in the form of an ice pack to his back. An incident report noted that '[t]he bucket of the digger struck the tray of the truck causing the cab to shudder'. The injured worker indicated to his supervisor that he had a sore shoulder.

The injured worker continued with his normal duties until late March 2016 and did not complain of shoulder pain to anyone in this period. The worker was on break in March 2016 when his shoulder froze up and he obtained the first medical certificate. He had not worked since then.

The decision at arbitration

At arbitration, the worker argued he suffered a personal injury by accident to his left shoulder at work on 7 February 2016, and that the injury he suffered on that occasion was a 'soft tissue injury'. The worker argued that the 'soft tissue injury' on 7 February 2016 led to or triggered two conditions being adhesive capsulitis ('frozen shoulder'), and subacromial impingement.

The Arbitrator found the worker did not establish that the cab of his truck was shaken violently in the incident on 7 February 2016. Further, there was insufficient evidence to support a finding as to what likely physiological change occurred in the worker's shoulder on 7 February 2016, or (if there were a change), whether such a change could have resulted from him being shaken less violently than he alleged. Therefore, the worker did not establish that he suffered a personal injury by accident.

The Arbitrator also found that if the worker had suffered an injury by accident as alleged, leading to adhesive capsulitis (frozen shoulder) and/or subacromial impingement, he had not established that he was totally incapacitated for work from 26 March 2016 as alleged. Nor had he run a case of entitlement based on partial incapacity. Therefore, there was no entitlement to weekly payments in any event.

The decision on appeal at the District Court

The worker lodged an appeal to the District Court which was dismissed. In particular, the Judge found that the Arbitrator did not find that the worker sustained a soft tissue injury, and the worker's failure to discharge the burden of proof that he suffered a personal injury by accident which arose out of or in the course of his employment, did not amount to an error of law on the part of the Arbitrator. Rather, it was simply a failure of the worker to discharge the burden of proof on him.

The decision on appeal at the Court of Appeal

Leave to appeal was refused by the Court of Appeal for two reasons. First, none of the grounds of appeal, in substance, related to a question of law and the grounds otherwise had no merit. Secondly, the decision if left unreversed, would cause no substantial injustice to the worker. That is because he did not, in any event, challenge the alternative basis upon which the Arbitrator dismissed his claim, namely that he had not established that he was totally incapacitated for work, and he had not made or established an alternative claim based on partial incapacity.

The Court of Appeal noted:

  • Evidence of both Dr Phillips and Dr Meyerkort was to the effect that any soft tissue injury suffered on 7 February 2016 would have resolved itself within two to six weeks. Moreover, both Dr Phillips and Dr Meyerkort noted the result of the MRI without suggesting that a low-grade AC joint sprain was a soft tissue injury of the kind that they would otherwise have expected to resolve itself within two to six weeks. Accordingly, the evidence did not establish that the worker had suffered an AC joint sprain on 7 February 2016.
  • The only physician who provided an opinion as to what the soft tissue injury might have been was Dr Phillips. Dr Phillips speculated, in effect, that there might have been a 'soft tissue strain or a 'soft tissue contusion' affecting the tissues just deep to the point of claimed tenderness, but without affecting the structural integrity of the shoulder joint. Moreover, Dr Phillips' opinion was based on a history, given to him by the worker, of being 'violently shaken' and being 'bounced around the cab'. The worker's evidence in that regard was rejected and it was unlikely that he struck his shoulder against any part of the cab. Accordingly, it had not been established that there was a strain or contusion of the left shoulder on 7 February 2016.
  • Dr Fairhurst said that the worker 'suffered a left shoulder injury', but did not diagnose what that injury was. He cited radiological findings which appeared to be inconsistent, and in any event did not expressly relate those findings to the events of 7 February 2016.
  • Whilst Dr Overmeire considered that the worker suffered a 'new injury to his left shoulder in the reported jolting incident', which he described as 'an acute soft tissue injury to the left shoulder', that evidence did not assist in identifying what the particular physiological change might have been.
  • Further, both Dr Fairhurst and Dr Overmeire reported a soft tissue/shoulder injury by reference to the worker's history of being 'violently' shaken in the cab of his truck. The Arbitrator was not satisfied that the worker was violently shaken. So even if their broad references to 'soft tissue injury' sufficiently described a physiological change for the purposes of 'injury by accident' without identifying what particular soft tissue was injured, no significant weight could be given to their view given their reliance on the unproven history of the accident.
  • The Court of Appeal considered the evidence, and upheld the Arbitrator's decision.

Implications for you

The decision highlights the evidentiary burden on workers to establish the nature of their injury, and that factual findings are critical to establishing there was a personal injury by accident.  

Waite v Alcoa of Australia Ltd [2020] WASCA 1

Author

Colby Treasure

Colby Treasure

Principal