Amcor Packaging (Australia) P/L v Q-Comp
[2008] QMC 8
•12 September 2008
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Amcor Packaging (Australia) P/L v Q-COMP [2008] QMC 8
PARTIES:
AMCOR PACKAGING (AUSTRALIA) PTY LTD
(appellant)
v
Q-COMP
(respondent)
FILE NO/S:
MAG69250/08(4)
DIVISION:
Industrial Magistrates Court
PROCEEDING:
Appeal against decision of Q-COMP
ORIGINATING COURT:
Brisbane Industrial Magistrates Court
DELIVERED ON:
12 September 2008
DELIVERED AT:
Brisbane
HEARING DATE:
1 September 2008; 2 September 2008
MAGISTRATE:
Previtera T
ORDER:
Appeal allowed
CATCHWORDS:
INDUSTRIAL MAGISTRATES COURT – APPEAL AGAINST Q-COMP DECISION – INJURY – did injury arise in the course of employment
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 32(1)
COUNSEL:
M O’Sullivan appeared for the appellant
S McLeod appeared for the respondent
SOLICITORS:
Respondent appeared on its own behalf
This is an appeal by an employer (AMCOR) against a decision of Q-Comp dated 28 of February 2008 allowing an application for compensation of a worker, Lynette Dulcie Hastie.
The following matters are not in dispute:-
Ms Hastie was employed by the appellant as a machine operator and was a “worker” within the meaning of s 11 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act). She had been employed by the appellant since 1996. She suffers from severe subtalar arthritis of the right foot.
On the 20 August 2004, Ms Hastie sprained her ankle as a result of falling when walking on an uneven surface in the workplace.
On the 23 of July 2007, three weeks after returning to work following a period of six to seven weeks of holiday leave, Ms Hastie lodged an application for compensation[1], alleging an aggravation of her pre-existing severe sub-talar osteoarthritis and referring to the 20 August 2004 event. In support of the application, Ms Hastie’s GP Dr Fraser provided a medical certificate diagnosing “severe arthritis of right ankle”. An independent orthopaedic surgeon, Dr J Scott opined that the diagnosis was “sever (sic) right foot subtalar arthritis with associated posterior tibial tendon dysfunction,” and that it existed before events in both 2004 and 2007. Dr B Kable, an external medical officer, concluded that the injury was constitutional and not work related.
[1] Exhibit 1.
Ms Hastie ceased her employment with the appellant towards the end of July 2007.
On 10 September 2007, WorkCover QLD, the insurer, decided not to accept Ms Hastie’s claim as it determined that she had not sustained an “injury” within the meaning of s 32 of the Act.
On the 18 of November 2007 Ms Hastie filed an application for review of the decision on that ground alone.
On the 28 of February 2008 Q-Comp determined Ms Hastie’s application for review by setting aside the decision of WorkCover Qld and substituting a decision to accept the application. In addition to material and medical reports considered by the insurer, Q-Comp had regard to a statement of Ms Hastie, a report of Dr Graeme Edwards dated 22 August 2007[2] and a report of Dr Greg Gillett dated 18 January 2008.[3]
[2] Exhibit 6.
[3] Exhibit 7.
THE MATTER IN DISPUTE
The sole issue requiring determination is whether or not there was an aggravation of the pre-existing severe sub-talar osteoarthritis in Ms Hastie’s right foot, arising out of or in the course of employment, with employment being a significant contributing factor to the aggravation, so as to bring it within the definition of injury within the meaning of s 32(3)(b) of the Act.
S 32 of the Act provides;
s 32 Meaning of injury
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.
…
Injury includes the following—
….
b. an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—
(i) a personal injury;
(ii) a disease;
(iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation;
…..
For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
….
The reliability or otherwise of Ms Hastie’s evidence and her statements to medical specialists in relation to her work practices and symptomotology are relevant to the determination of the issue in dispute.
CREDIT
Ms Hastie gave her evidence in an evasive, avoidant, vague and defensive manner. There were a number of inconsistencies between her oral evidence, her statement dated 10 August 2004[4] and what she reportedly told a number of medical practitioners.
[4] Exhibit 11.
For example:
1. In her statement dated 10 of August 2004 to her employer, she stated “I have not had any issues with my ankles in the past.”[5] Ms Hastie also told Dr Scott when she attended upon him in August 2007 that, prior to the ankle sprain in 2004; she had never had pain in the ankle. When Dr Gillett examined her on 18 January 2008, she reported that “Prior to the initial event in 2004 she had no symptoms in her foot and she can’t recall when the foot changed shape.”
[5] Exhibit No. 11 paragraph 10
Contrary to those statements, however;
(a) Medical records from the Regents Park surgery indicate that Ms Hastie told Doctor Lam on 17 April 2000 that she had been having pain in both ankles for months. Dr Lam noted “stiffness; no swelling” and referred Ms Hastie for X-ray and review[6]. On 15 February 2003, Ms Hastie presented again with a sore right ankle that had been present for “months”.[7] The X-Rays indicated that against a clinical history of persisting discomfort the right ankle x-ray showed a mild degree of degenerative change present in the ankle joint.[8]
[6] Exhibit 9.
[7] Exhibit 9.
[8] Exhibit No. 9 letter Queensland X-ray to Doctor Keith Smith dated 15 of February 2003
(b) On 12 November 2003, Dr Lam referred Ms Hastie to Dr Saxby for assessment in relation to “persisting pain and swelling of the right ankle”.[9]
[9] Exhibit 8.
(c) Dr Saxby reported to Dr Lam on the 22 November 2003 that Ms Hastie “has had hind foot pain for the last couple of years. She is getting gradually worse and she has bilateral pes planus but seems to have tenderness mainly along the course of posterior tibial tendon...”[10]
[10] Exhibit 8.
(d) Under cross-examination, Ms Hastie was eventually forced to concede that paragraph 10 of her statement to her employer dated 10 August 2004 was incorrect; and that if she had told Dr Scott when she consulted with him in August 2007 that she had had no pain in her ankles before spraining her ankle in August 2004, that that would also be a lie.
Her explanation for the making of the contrary statements to the various medical specialists (that she had no symptoms in her foot prior to 2004 after Dr Saxby put arches in her shoes) is not accepted by this court to be a credible explanation. Ms Hastie gave the impression of someone trying to reconstruct her evidence in light of documentary medical evidence as to what she had reported to medical specialists compared to what she had reported to her employer, to WorkCover and to Q-Comp and to her general practitioner.
2. In relation to the particular duties required by her employment, she gave oral evidence that her duties prior to her period of leave in May 2007 were different to her conditions of employment upon her return from leave in June/July 2007. She maintains that she worked on the integrated lines comprising work predominantly on ground level, but that after her return from leave she was in the peelable foil section. (She had worked in this section in the past). She stated that in the peelable foil section, she was continually up and down on a step ladder and a platform for various activities undertaken on rotating shifts of 3 to 4 hours per shift over a total 12 hour shift period; that whilst on the machine in one shift she would be required to step up approximately 2 steps on the ladder every half hour and every 3 to 4 minutes to feed the machine; and if working at the back of the machine she was required to step on a platform approximately 12” to 15” from the ground every 2 to 3 minutes for the whole of the 3 to 4 hour shift.
Contrary to that, however:
(a) Dr Graeme Edwards states in his report dated 22 August 2007[11] that Ms Hastie provided information that “it is not the specific work but rather the difference between the physical demands of her holiday and work activities that has resulted in her symptomatology” and “There is not a material difference between the activity of her pre-holiday and post-holiday deployments.”[12]
(b) Mr Riedel, a work supervisor employed by the appellant since 2000, described the work activity required of a machine operator on the peelable foil section as requiring much less movement and regularity of movement than that described by Ms Hastie.
[11] Exhibit No. 6
[12] Exhibit No. 6 page 1, paragraph 3
Mr Reidel impressed as an honest witness who was not successfully challenged in relation to his evidence. While his evidence that Ms Hastie was working in the peelable foil section prior to her holiday in May 2007 was the result of a verbal communication to him from another person, this information accords with information contained in Dr Edwards’ report as indicated in (a) above. Accordingly, I accept Mr Reidel’s evidence in relation to this issue also.
Having regard to all of the above, the court considers Ms Hastie’s statements to medical specialists to be deliberately misleading and her evidence in relation to her reported symptoms in 2004, the alleged aggravation of her condition in the July 2007 work activity, her work practices and her evidence generally to be unreliable.
MEDICAL OPINIONS
Dr Gillett, in his report[13], stated that “In relation to the events that occurred in July 2007, this type of work practice would predictably cause her arthritic right foot and hind foot to become more symptomatic. Again there has been an aggravation of the degenerative process.” Under cross-examination, however, he conceded that what Ms Hastie had reported to him (as against documented medical evidence) could be interpreted as being untruthful; and that it would cause him to call into question Ms Hastie’s reliability as to her reported symptoms so as to make him express doubt about the symptomatology and work practices.
[13] Exhibit 7.
Dr Edwards, in his report[14] stated that Ms Hastie had sustained “an exacerbation associated with the demands of returning to work.” Under cross-examination, he likewise conceded that the information provided to him by Ms Hastie, and upon which he relied, was “less than ideal”. In any event, he opined that there has been no more than an “exacerbation” associated with the demands of her returning to work. He deliberately chose the word “exacerbation” rather than “aggravation”. In his oral evidence, he further clarified that to say that work had not even irritated her condition”[15]. In his report, he states “Work has highlighted the natural progression of her degenerate pathology and is associated (with but not primarily causal to) the flare…..The natural progression of the underlying degenerate pathology limits her capacity. The demands of work have highlighted her functional limitation. [16]
[14] Exhibit 6.
[15] Exhibit 6, page 2.
[16] Exhibit 6, page 2.
The court distinguishes the case of Fielder V. Workcover Queensland, [17] relied upon by the respondent, on the basis that the court, having regard to its determination as to the unreliability of Hastie’s statements to medical practitioners and her evidence as a whole, cannot be satisfied as to the required proximity of time between the purported incidents in 2004 and the alleged onset of pain or the events after her return from leave in 2007 and the alleged onset of pain.
[17] (2004) QIC 8; 175 QGIG 871 (19 February 2004)
On the whole, the court is satisfied on the balance of probabilities that the underlying condition of osteoarthritis of the right hind foot caused Ms Hastie’s symptoms; and work is not a significant contributing factor.
ORDERS
Appeal allowed. 1.
The parties have leave to apply with respect to costs if costs are not agreed, upon the giving of 14 days notice in writing of any application, such application to be made on or before 24th October, to be listed before Magistrate Previtera after 27th October 2008.2.
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