Hyde v Simon Blackwood (Workers' Compensation Regulator)
[2015] ICQ 7
•9 February 2015
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Hyde v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 007 |
PARTIES: | Hyde, Garry v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | C/2014/35 |
PROCEEDING: | Appeal against decision of the Queensland Industrial Relations Commission |
DELIVERED ON: | 9 February 2015 |
HEARING DATE: | 2 February 2015 |
MEMBER: | Vice President Linnane |
ORDERS: | Appeal dismissed |
| CATCHWORDS: | WORKERS' COMPENSATION - Where the Appellant claimed he sustained a personal injury as a result of the duties performed at work - Where the Appellant's appeal against the rejection of his claim was dismissed by the Commission - Where the Commission preferred the evidence of one medical expert over another medical expert - Where the Commissioner's finding that the injury to the Appellant did not arise out of, or in the course of, the Appellant's employment as a wardsman - No error on the part of the Commissioner identified - Appeal dismissed. |
| CASES: | Hyde v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 099 |
| APPEARANCES: | Mr G. Hyde, the Appellant in person. |
Decision
Garry Hyde was employed as a wardsman at the Princess Alexandra Hospital during the period 2007 to July 2011. Mr Hyde claims that he suffered an injury to his left knee as a result of the duties he performed during that period. The Commission in Hyde v Simon Blackwood (Workers' Compensation Regulator)[1] confirmed the decision of the Workers' Compensation Regulator (Regulator) that Mr Hyde's injury did not arise out of, or in the course of, his employment as a wardsman and further that his employment as a wardsman was not a significant contributing factor to the development of his injury. It is against that decision that Mr Hyde appeals to the Industrial Court of Queensland.
[1] Hyde v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 099.
The Regulator conceded that Mr Hyde was a worker and both medical practitioners who gave evidence before the Queensland Industrial Relations Commission (Commission) agreed that the injury to Mr Hyde's left knee was arthritis. This evidence was supported by X-rays showing that Mr Hyde had medial compartment osteoarthritis in his left knee. Thus the issue for the Commission was whether the arthritis in Mr Hyde's left knee arose out of, or in the course of, his employment as a wardsman, and, if so, was his employment as a wardsman a significant contributory factor to the arthritis.
The medical evidence before the Commission came from Dr Neville Blomeley, Mr Hyde's general medical practitioner (a witness called by Mr Hyde), and from Dr Peter Steadman, Associate Professor Orthopaedics (UQ), (a witness for the Regulator). Dr Blomeley's correspondence was Exhibit 6 in the proceedings before the Commission and Dr Steadman's Independent Medico-Legal Report was Exhibit 5. Ultimately the Commissioner preferred the evidence of Dr Steadman to that of Dr Blomeley.
Thus the issue on the appeal is whether the Commissioner erred in preferring the evidence of Dr Steadman over that of Dr Blomeley.
In Dr Steadman's medical report he opines that Mr Hyde's work related activities would not have caused or adversely affected the outcome of his long-term osteoarthritis, taking into account his age, his obesity and other co-morbidities. Throughout his oral evidence Dr Steadman confirmed that view and was not able to be persuaded to the contrary. Dr Steadman's opinion was that he saw nothing other than the normal degenerative process occurring in Mr Hyde's left knee. Further, Dr Steadman said that there was no specific event and no other factors to suggest that the occupational activity at the Princess Alexandra Hospital led to a significant deterioration in Mr Hyde's left knee arthritic condition.
Dr Steadman in his evidence attempted to explain to Mr Hyde how he agreed with other medical experts who had indicated to Mr Hyde that he should resign from employment because of his arthritic knees. Dr Steadman said that the pain suffered by Mr Hyde as a result of the arthritis in his knees would cause him to resign from employment as a wardsman. It was the pain caused by the arthritis that prevented Mr Hyde from carrying out his duties as a wardsman. However, Dr Steadman was clear that in so agreeing he was not suggesting that the arthritis suffered by Mr Hyde was caused by the duties he performed as a wardsman at the Princess Alexandra Hospital.
In Dr Blomeley's correspondence of June 2013 he indicates that Mr Hyde had been a patient of his since May 2007. At that time Mr Hyde had indicated to him that he had hit his right knee whilst at work and that he had suffered ongoing pain which had limited his walking and that the knee was catching and giving way. At the time, Dr Blomeley referred Mr Hyde to the Greenslopes Hospital where an MRI showed damage to the articular cartilage of Mr Hyde's right knee consistent with a direct blow. This evidence, however, related to Mr Hyde's right knee which was not the subject of the claim before the Commission.
Dr Blomeley further reported that he had referred Mr Hyde to the Orthopaedic Outpatients Clinic at Princess Alexandra Hospital for ongoing problems with his right knee in 2009. This again related to Mr Hyde's right knee. It was at this time that Mr Hyde was seen by Dr North. Dr North did not give evidence at the hearing. Dr Blomeley said that around this time (i.e. 2009) Mr Hyde started developing pain in his left knee which he opined was quite likely related to favouring his left knee due to his right knee injury. Dr Blomeley stated that X-rays showed significant osteoarthritis and that he "had no doubt" that it was "the initial injury at work which has caused Garry's ongoing problems". Thus Dr Blomeley seemed to opine, in his report of 17 June 2013 (Exhibit 6), that it was the injury to Mr Hyde's right knee in 2007 which resulted in Mr Hyde's left knee osteoarthritis.
In his oral evidence, Dr Blomeley particularised the significant duties performed by Mr Hyde which, in his opinion, caused Mr Hyde's arthritis in his left leg i.e. bending down, picking up patients, picking up anything from the ground and the repetitive nature of squatting and lifting. The difficulty with this evidence of Dr Blomeley was that he had no notes in his clinical records of Mr Hyde informing him of these duties. Further, Mr Hyde himself gave no evidence whatsoever of performing such duties. Basically Dr Blomeley relied upon his recollection of the duties performed by wardsmen when he was a medical student some thirty years previously.
As at 17 June 2013 when Dr Blomeley provided his correspondence (Exhibit 6), he made no mention whatsoever of bending down, picking up patients, picking up anything from the ground or the repetitive squatting and lifting as being the cause of Mr Hyde's arthritis in his left knee.
Mr Hyde's complaint on appeal is that the Commission only took account of Dr Steadman's evidence in coming to her conclusion. In the Commission's decision thirteen paragraphs were devoted to Mr Hyde's evidence, ten paragraphs dealt with Dr Blomeley's evidence and sixteen paragraphs covered Dr Steadman's evidence. Thus the Commission did consider the evidence of each witness who gave evidence at the hearing.
Mr Hyde also complained that Dr Steadman gave only opinion evidence and that the Commission could only consider factual evidence and so should have disregarded Dr Steadman's evidence. During the course of the appeal hearing Mr Hyde was informed that the Commission was entitled to consider the opinion evidence of expert witnesses and that the Commission was regularly assisted in workers' compensation cases by the opinion evidence of expert medical witnesses. Thus the Commissioner did not err by relying on Dr Steadman's opinion evidence.
Ultimately the Commissioner preferred Dr Steadman's evidence to that of Dr Blomeley, indicating that Dr Steadman's evidence was at all times "consistent and logical". There has been no error on the part of the Commissioner in preferring Dr Steadman's evidence. In that regard Dr Steadman was the specialist Orthopaedic Surgeon, his medial report was extensive, the fifty-three documents he considered were identified in his Medical Report and he conducted an independent medical examination. Dr Steadman's evidence was also consistent and thus the finding of consistency was open to the Commissioner.
Dr Blomeley's evidence however was somewhat inconsistent. As at June 2013, Dr Blomeley was of the opinion that Mr Hyde's arthritis in his left leg was as a result of the initial injury to his right leg in 2007 which had, over time, resulted in osteoarthritis in his left leg. In the course of his oral evidence, Dr Blomeley stated that it was the bending down, picking up patients, picking up anything from the ground and the repetitive nature of squatting and lifting duties as a wardsman that caused Mr Hyde's left knee osteoarthritis. This was in circumstances where Dr Blomeley was unable to identify any occasion in his clinical notes (since 2007) when he asked Mr Hyde and/or Mr Hyde himself informed Dr Blomeley of the duties he performed as a wardsman.
The findings of fact in the Commission's decision were open to the Commissioner. The evidence before the Commission supported those findings of fact. The Commissioner was entitled to prefer the evidence of Dr Steadman to that of Dr Blomeley and explained the reasons for her preferring the evidence of one medical expert over the evidence of the other expert. The Commissioner further applied the law correctly to those findings of fact and the opinions of the expert medical witnesses.
Mr Hyde bore the onus of establishing error on the part of the Commissioner. Mr Hyde has not demonstrated any such error. The appeal must therefore be dismissed.
Further Issue raised by the Appellant
Throughout his oral and written submissions Mr Hyde, who represented himself, complained that he was under the impression that the Regulator was calling Dr North as a witness otherwise he would have asked Dr North to give evidence. Mr Lippett, Counsel for the Regulator, provided the Court with a brief chronology of events to dispute Mr Hyde's claim. According to that chronology, Mr Hyde provided his list of witnesses to the Commission and the Regulator on 30 July 2013. That list included two lay witnesses and Dr Blomeley. On 27 September 2013 the Regulator provided its list of witnesses which included Dr North. Three days later, on 30 September 2013, the Regulator advised the Commission and Mr Hyde that its only medical witness was Dr Steadman. The hearing before the Commission commenced on 14 October 2013 with Dr Blomeley's evidence delayed until 5 November 2013.
In those circumstances Mr Hyde had every opportunity to call Dr North as a witness. It was only for a three day period that Mr Hyde could have thought that the Regulator may have called Dr North. The hearing of the matter was delayed until 5 November 2013 to enable Mr Hyde to call the evidence of Dr Blomeley. Had Mr Hyde wished to call Dr North as a witness he had every opportunity to do so.
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