The case of disputed injury in Qantas Airways Ltd v Coleman [2020] NSWWCCPD 42 concerned a worker who did not discover the extent of his injury in the first instance.
Background
The worker was employed by Qantas as a long-haul flight attendant from 1988 to March 2019. In May 2016, he suffered an injury to his right and left arms when he pulled his bag out from the overhead locker. Once the bag had began to fall he used his left arm to try to stop the bag from continuing to fall while his right arm took most of the weight because he had used to try to pull the bag from the locker.
The worker reported the injuries to the Customer Service Manager on the flight including that he had an uncomfortable numbness sensation and tingling in both hands and fingertips. The Customer Service Manager did not record the symptoms in his left hand. He was in Santiago for several days before returning to Sydney.
On his return he lodged a claim form listing only the symptoms in his right arm, but not the left arm. The claim was accepted.
Subsequently the workers surgeon diagnosed right-sided ulnar neuropathy secondary to cubital tunnel and performed surgery in September 2016.
Around Christmas 2016, the worker developed clawing of his left hand and his surgeon diagnosed ulnar nerve impingement. Left elbow surgery was performed in March 2017.
Qantas disputed the injury to his left arm.
In the meantime, the worker underwent a right arthroscopic acromioplasty, rotator cuff repair and biceps tendonesis in April 2017.
The worker made a claim for lump sum compensation for both arms of 17% WPI.
As Qantas disputed the injury to the left arm, they alleged the injury to the right arm alone did not satisfy the 11% WPI threshold and the workers was not entitled to lump sum compensation.
An application to resolve a dispute was filed in the Workers Compensation Commission coming before an Arbitrator on 30 January 2020. The Arbitrator determined that the worker did in fact injure his left ulnar nerve as claimed by the worker. He referred the matter to an Approved Medical Specialist to assess the level of WPI for both arms.
The Arbitrator referred to contemporaneous medical evidence including the GP’s clinical notes and a certificate which indicated complaints in both arms and that bilateral nerve conduction studies were performed in June 2016. The Arbitrator noted the worker had not previously suffered left hand or arm symptoms and the weight of the falling bag took the worker by surprise causing immediate symptoms in both arms.
The Arbitrator was satisfied, after reviewing the workers medical evidence there was a sudden pathological change to the left ulnar nerve, notwithstanding the symptoms were not initially as severe as those in the right arm.
Qantas appealed this decision alleging, amongst other things, that the arbitrator erred by inferring that the worker’s left arm was involved in the incident in May 2016.
The finding
The matter was considered by Deputy President Snell on 30 June 2020 who rejected the ascertain made by Qantas stating that in considering whether an inference should be drawn, it is necessary to consider the evidence as a whole on the balance of probabilities and that an Arbitrator is entitled to make findings “within the realm of common knowledge and experience” and this includes a conclusion that in giving a medical history, an injured person would give more attention to his most concerning problems. He found that the inference was available on the evidence and upheld the Certificate of Determination.
Conclusion
Ideally an injured worker should list all symptoms following an injury on their initial claim form and certificate of capacity. But if something is excluded, it may not be fatal to their claim, especially where their treating medical practitioners have kept detailed notes as the symptoms following an injury.
