Qantas Airways Ltd v Coleman [2020] NSWWCCPD 42
Background
The worker, Matthew Coleman, was employed as a long-haul flight attendant with Qantas. On 20 May 2016, after completing a 15 hour flight from Sydney to Santiago, Chile, he retrieved his 15kg carry-on bag from an overhead locker. As the worker was pulling the bag from the locker, it slipped and fell, causing him to take its weight. The worker immediately felt an uncomfortable numbness and a tingling sensation in both hands and fingers.
The worker reported the incident to the Qantas Customer Service Manager, who failed to record the workers complaints in relation to symptoms of numbness and tingling in his left hand.
Upon his return to Sydney, after 7 days in Chile, the worker lodged a workers compensation claim recording injury to his right arm, but not his left arm. The claim was accepted.
After consultation with his treating medical practitioners, the workers surgeon diagnosed leftsided ulnar nerve impingement and performed surgery on his left elbow in March 2017.
Qantas disputed liability for the injury to his left arm.
The worker subsequently made a claim for lump sum compensation for an assessment of 17% whole person impairment (WPI) in relation to injuries sustained to both left and right arms.
Qantas had disputed liability for injury to the left arm, and alleged that the injury to right arm was not sufficient to reach the 11% WPI threshold for lump sum compensation.
Application
The worker submitted an application to resolve a dispute in the Workers Compensation Commission.
The Arbitrator noted that the worker did not provide any explanation as to why he did not refer to the left arm injury in his claim form, nor in a statement prepared shortly after the incident.
However, the Arbitrator highlighted that the worker had not suffered any pre-existing left arm pathology and referred to a range of contemporaneous medical evidence which recorded complaints of symptoms in both arms, and in particular, bilateral nerve conduction studies that were performed in June 2016.
The Arbitrator noted that, at the time of the incident in May 2016, the workers “main concern was right sided symptoms. It was not necessary that the (worker) provide a “word perfect” description of the incident.”
The Arbitrator determined that the worker did injure his left arm on 20 May 2016 and the matter was referred to an Approved Medical Specialist (AMS) to assess the WPI of both arms.
Appeal
Qantas appealed this determination on the basis that it alleged the Arbitrator did not provide adequate reasoning addressing the nexus between the pathology of the left arm and the incident on 20 May 2016, and that the Arbitrator had erred by inferring that the worker’s left arm was involved in the incident.
Deputy President Snell considered the appeal and found that the inference drawn by the Arbitrator, that the left arm was involved in the incident, was available on the evidence. In making this finding, the Deputy President noted that when considering whether an inference should be drawn, it is necessary to have regard to the evidence as a whole, or, “the united force of all the circumstances.”
The Deputy President highlighted these circumstances as including: the lack of any previous complaints, the likely factual matrix surrounding catching a falling back with both arms (as opposed to one arm), and the conclusion that an injured person, in giving a medical history, would tend to give more attention to their most concerning problems.
The Deputy President determined that the appeal was unsuccessful and upheld the Arbitrators decision.
Takeaway from the matter
At the time of suffering an injury, many workers are unable to properly assess the precise body systems that have suffered injury. It is reasonable to accept that an injured worker is predominantly focused upon the body system that is causing them to experience the most pain or discomfort. However, this can lead to problems in the future when pursuing a compensation claim, as the workers compensation insurer may raise issues with regards to why the injured body parts were not properly notified or reported.
This decision sets out that errors in properly identifying injured body parts at the time of the incident may not be fatal to an injured workers claim, instead, the decision maker must take into account the entire factual matrix surrounding the incident in determining whether an injury has occurred.