John Andrew Dalby v Q-COMP

Date of decision: 21 October 2009, I.M. Callaghan

Mr J. Wiltshire of Counsel, instructed by Maurice Blackburn for the appellant

Mr A. McLean-Williams of Counsel, directly instructed by Q-COMP

Mr G. Cross of Counsel, instructed by A.K. Compensation Lawyers for the intervenor, Swift Australia Pty Ltd

Key words – Meat Worker - 43 – Injury Type: physical – Appeal Outcome: appeal dismissed - Significant sections considered: –

s32(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

Head Note

Mr Dalby was employed by Swift Australia as a meat worker over a number of years since 1989. Mr Dalby lodged an application for compensation for an injury which occurred to his right shoulder, elbows and wrists on 16 June 2006, a claim which was accepted. He then filed two Notices of Claim for Damages for injuries to the same locations over the periods 1 July 2001 to 30 June 2003 and 1 July 2003 to 15 June 2006.

The self-insurer considered the further two claims and ultimately rejected those claims.

Mr Dalby applied to Q-COMP for review of the rejected claims and by decision dated 7 August 2008, Q-COMP confirmed the rejection on the basis that:

i. In relation to the period 1 July 2001 to 30 June 2003, there was no description of symptoms suffered by Mr Dalby during that period and therefore there was no basis for finding that he sustained an injury in that period.

ii. In relation to the period 1 July 2003 to 15 June 2006, there was no evidence of Mr Dalby reporting his symptoms to either his employer or to a treating doctor, and there was supporting medical opinion that Mr Dalby had not suffered an injury.

I.M. Callaghan considered the evidence of the appellant, Mr Dalby, and noted that he was not a reliable witness when trying to determine whether or not he had suffered an injury prior to 16 June 2006 as he did not disclose his injuries to the site nurse, despite a number of visits to that office, and his varying accounts of when the symptoms occurred.

He then went on to consider the medical evidence and concluded that they had not established that Mr Dalby had suffered the injuries alleged or any injury in the periods in question. He stated that he could not be satisfied on the balance of probabilities that Mr Dalby’s employment had been a significant contributing factor to his injuries. He also stated that he preferred the opinion of Dr Treffene over Dr Gillett because his opinion was supported by the evidence of Dr’s Duke and Vecchio and that his examination of Mr Dalby was more contemporaneous to his reporting of symptoms than that of Dr Gillett. I.M. Callaghan was ultimately not satisfied that the symptoms suffered by Mr Dalby were not as a result of his rheumatoid arthritis and confirmed Q-COMP’s decision to reject the claims.