J. Hutchinson Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 27
•7 February 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | J. Hutchinson Pty Ltd v Simon Blackwood | ||||
| (Workers' Compensation Regulator) [2014] QIRC 027 | |||||
| PARTIES: | J. Hutchinson Pty Ltd | ||||
| (Appellant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (Respondent) | |||||
| CASE NO: | WC/2013/107 | ||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||
| (Workers' Compensation Regulator) | |||||
| DELIVERED ON: | 7 February 2014 | ||||
| HEARING DATES: | 31 October 2013 | ||||
| 13 November 2013 29 November 2013 (Respondent's Submissions) 13 December 2013 (Appellant's Submissions) | |||||
| MEMBER: | Industrial Commissioner Thompson | ||||
| ORDERS : |
|
confirmed.
3. Costs are reserved.
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant was the was employer - Employee was worker - Worker suffered a personal injury - Appellant failed to establish that the secondary psychiatric/psychological injury did not arise out of or in the course of worker's employment and that employment was not a significant contributing factor to the injury - Appeal dismissed - decision of Regulator confirmed - claim for compensation one for acceptance - costs reserved |
| CASES: | Workers' Compensation and Rehabilitation Act |
| 2003 s 11, s 32, s 550 | |
| Lackey v WorkCover Queensland [2000] QIC 43 Adelaide Stevedoring Co Pty Ltd v Forst (1940) 64 CLR 538 Ramsay v Watson (1961) 108 CLR 642 Horton v Q-COMP (unreported, Gladstone Industrial Magistrates Court, Marrow, 15 May 2007) Pacific Coal Pty Ltd v Gaudy [1996] QCA 525 | |
| APPEARANCES: | Mr S. McLeod, Counsel instructed by Kaden Boriss for the Appellant. Mr N. Jarro, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), Respondent. |
[1] On 3 April 2013 J. Hutchinson Pty Ltd (the Appellant) filed with the Industrial Registrar a Notice of Appeal pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q-COMP) released on 21 February 2013.
[2] The Act has subsequently been amended with the result that Q-COMP has been abolished and replaced by Simon Blackwood (Workers' Compensation Regulator) (the Regulator). In this decision the term Regulator is used in place of the previously referred to term Q-COMP.
[3] The decision of the Regulator was to set aside the decision of WorkCover to reject an Application for Compensation for a secondary psychological injury from Wayne Lewis (Lewis) and substitute a new decision to accept the application in accordance with s 32 of the Act.
Relevant Legislation
[4] The legislation pertinent to this Appeal is s 32 of the Act.
"32 Meaning of injury
(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.
(2) However, employment need not be a significant contributing factor to
the injury if section 34(2) or 35(2) applies.(3) Injury includes the following -
(a)
a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
(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;
(c)
loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
(d)
death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
(e)
death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
(f)
death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.
(4)
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.
(5)
Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
(a)
reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b)
the worker's expectation or perception of reasonable management action being taken against the worker;
(c)
action by the Authority or an insurer in connection with the worker's application for compensation."
Nature of Appeal
[5] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.
Standard of Proof
[6] The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
[7] In the course of the proceedings, evidence was provided by six witnesses.
[8] The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witness Lists
[9] The witnesses for the Appellant were as follows:
Dr Gordon Strachan (Dr Strachan); and Dr Noel Cleaver (Dr Cleaver).
[10] The witnesses for the Regulator were as follows:
Dr Petros Markou (Dr Markou); Lewis; Dr Paul Cadzow (Dr Cadzow); and Dr Sharon Harding (Dr Harding).
Appellant
Dr Strachan
[11] Dr Strachan, a General Practitioner of 16 years standing, had treated Lewis on a number of occasions before and after his back injury. Dr Strachan prepared a report on 10 September 2013 [Exhibit 2] in which he stated:
Lewis had aggravated a previously undiagnosed back condition in November 2010 - saw his occupation as being the cause of his disability; Lewis had no previous documented back issues prior to November 2010; investigations in 2010 and 2011 indicated a spondylolisthesis at L5 S1 and disc degeneration, hence the diagnosis of a pre-existing condition his occupation would not cause but had caused an aggravation; an Orthopaedic Surgeon (Dr Cleaver) felt the aggravated injury should
settle after a period of 6 months; since the initial injury Lewis had been in constant pain, had issues in dealing with the pain and financial concerns resulting in severe anxiety/depression which he reasonably relates to his injury in November 2010; Dr Strachan was of the view it was reasonable to agree that the back issues are a combination of underlying conditions and the work event of 15 November 2010; and it was unlikely that the event of 15 November 2010 would now be
contributing to his symptoms in his lower back.
[12] Dr Strachan gave evidence of treating Lewis in May, June, July, August and September 2011 for the back injury with a consultation on 15 September 2011 being the first time the issue of anxiety/depression was reported to him. Dr Strachan held the view that depression was associated with Lewis' back injury, although he did acknowledge he agreed with Dr Cleaver's opinion that the work injury to Lewis' back should have resolved in a four to six month time period.
[13] Under cross-examination, it was Dr Strachan's evidence that Lewis' depression developed from the back injury suffered in November 2010 and of referrals [Exhibits 4 and 5] made to Dr Cadzow and Barry Kerr (Kerr) in March 2013 concerning Lewis having issues with adjustment reaction and depression. At that time he had concerns about Lewis' mental welfare, weight loss, his severe depression and anxiety [Transcript p. 1-14]. In terms of his agreeing with Dr Cleaver's opinion of the physical complaint lasting four to six months, his evidence was anxiety and depression - adjustment reaction could last up to two years [Transcript p. 1-15].
Dr Cleaver
[14] Dr Cleaver, an Orthopaedic Surgeon, provided two documents entered into the proceedings as Exhibits 15 and 16. The first document was correspondence to Dr Cleaver (dated 15 December 2010) from Dr Greg Cowdrey which was a Diagnostic Imaging Report. The findings identified in the case of Lewis that "there is a chronic grade 1 spondylolisthesis of L5 on S1 secondary to bilateral pars interarticulares defects. There is a degeneration of the L5/S1 disc". The second document, a medico-legal report prepared by Dr Cleaver on 28 February 2011, contained the following:
Lewis had degeneration of the bilateral pars; Lewis' work-related diagnosis is a work-related aggravation of his
pre-existing L5 - S1 spondylolisthesis; the work incident had aggravated Lewis' underlying condition; there were no relevant psychosocial factors; the prognosis as it stood was "guarded"; the work-related injury some six months on was, in his opinion, stable and stationary with a strongly put request that consideration be given for a caudal injection prior to signing off on the claim.
[15] In cross-examination, Dr Cleaver gave evidence regarding the request for the caudal injection after describing the injury as stable and stationary in which he stated:
"Yes. My - my request to have an injection was as a goodwill gesture, because very little had been for this guy in the six months since his injury. And even though I considered that the work related components would be stable and stationary, I thought it would be a nice gesture of good will to just get an injection to try and make him a bit more comfortable, and so I asked permission from WorkCover to do that."
Dr Cleaver went on to give evidence that such an injection would "get this guy some relief" [Transcript p. 2-4].
[16] Dr Cleaver gave his interpretation of comments regarding the resolvement of the work-related injury indicating the ongoing symptoms were due to the underlying spondylolisthesis. Dr Cleaver agreed as an Orthopaedic Specialist he would defer to the expertise of the psychiatric evidence given in this matter, particularly given the application relates to a psychiatric injury as opposed to a back injury or an Orthopaedic injury [Transcript p. 2-4].
[17] In response to questioning from the Commission, Dr Cleaver gave evidence that he issued Lewis with a WorkCover certificate (dated 12 January 2011) which showed he was fit to return to normal duties and that in his report of 28 February 2011 he opined that Lewis "did not have the capacity to upgrade to full hours and/or normal duties" [Transcript p. 2-5]. Dr Cleaver accepted a discrepancy existed explaining that patients regularly sought clearances for various things in order to access some sort of benefit or to keep their job open [Transcript p. 2-6].
Regulator
Dr Markou
[18] Dr Markou, a Psychiatrist, saw Lewis on 3 October 2012 and formed the opinion that he had developed a psychological condition secondary to the physical injury that occurred on 15 November 2010. He characterized the condition as chronic adjustment with depressive mood with the catalyst for the condition being primarily the pain he experiences.
[19] In a medico-legal report issued on 3 October 2013, Dr Markou confirmed his previous evidence regarding Lewis' condition and the causative nature of the condition. The report further dealt with matters including:
Lewis denying any psychological problems of either depression or
anxiety prior to the injury of November 2010; Lewis' description of injury and subsequent development of his depressed psychological state was consistent with his description of injury; PIRS rating; Definitive Permanent Impairment Assessment; cognitive impairment; further treatment required; and impact of injury on Lewis' ability to earn an income.
[20] Under cross-examination, Dr Markou indicated he had an awareness of Dr Cleaver's report of 28 February 2011 that had identified Lewis as having spondylolisthesis at L5 to disc 1, degeneration in that area, a pre-existing condition, and effectively that the workplace injury he had sustained had aggravated that underlying condition [Transcript p. 1-18]. On the proposition of Dr Cleaver that after six months the injury was stable and stationary, then how could it be concluded by Dr Markou that the work-related injury had made the underlying condition worse, Dr Markou did not accept that stable and stationary meant an injury had been treated. Dr Markou also did not accept that Lewis was complaining about pain that was solely attributable to his underlying back injury for reasons that a psychiatric condition has a life of its own [Transcript p. 1-19]. On a scenario where Lewis' injury from 15 November 2010 had resolved in June 2011, which was Dr Cleaver's finding, then the complaints thereafter are solely referable to the underlying condition, Dr Markou's evidence was to in effect challenge the findings of Dr Cleaver by claiming there were any number of Orthopaedic Surgeons who have differing opinions regarding the settlement of an aggravation. Dr Markou did accept that an event unrelated to Lewis' work or a natural congenital process that follows from his underlying condition could involve him encountering symptoms after the injury had resolved [Transcript p. 1-21].
[21] On Lewis not registering any complaint regarding his psychiatric condition between 15 November 2010 and 15 September 2011, Dr Markou expressed a view he could have been suffering the condition prior to raising the matter and it may not have reached clinical significance until that time [Transcript p. 1-22]. Dr Markou indicated the circumstances as described did not make him think about the opinion indicating his conclusion was based upon a history provided in his interview with Lewis. Dr Markou gave evidence that in the interview Lewis had not given him a timeframe in terms of experiencing stress, anxiety and depression and that all issues may not have been canvassed in that interview [Transcript p. 1-23]. It was a fair inference that there was an absence of details around the timeframes [Transcript p. 1-24].
[22] Dr Markou conceded that based on information around the onset of symptoms of Lewis' psychiatric conditions, there was some doubt about the conclusion he had reached [Transcript p. 1-24]. Dr Markou stated:
"I would want further clarification about that period of time between the two events, if you like, the onset of the injury and the time between that and the seeking of any opinion or any sort of treatment, any doctor, or his anxiety condition or his back pain." [Transcript p. 1-24]
[23] In re-examination, Dr Markou gave evidence that even if the physical condition resolved, it did not mean the psychiatric condition would do the same and that the injury of 15 November 2010 was a key factor in the development of the psychiatric condition suffered by Lewis [Transcript p. 1-25].
Lewis
[24] Lewis gave evidence in terms of an employment history that was varied and blue collar based. On 15 November 2010 he made an Application for Compensation when he had injured his back with the claim being accepted by WorkCover. He received benefits for that claim until it ceased. On 28 February 2012 he lodged a further Application for Compensation for a psychological injury said to have arisen out of the 15 November 2010 incident.
[25] At the time of the November 2010 incident, Lewis was having "financial troubles" on the Gold Coast and after a discussion with his boss he was given approval to ask Dr Cleaver for a clearance to return to work so he could pick up his redundancy and relocate back to the Sunshine Coast. Having been injured previously and always having "bounced" back, he thought he would improve, however there was no improvement in his health and he took a downhill spiral experiencing pain never before felt. His first symptoms of suffering emotionally because of the pain was on the Gold Coast when he could not pay his bills following his resignation from the Appellant which he had effected so as not to be a burden on his employer. Despite having received a full clearance from Dr Cleaver, he had never returned to work.
[26] Lewis could not recall when he first sought treatment for his mental issues, but for the first 18 months of his injury his evidence was he "pretty much had a breakdown". Lewis had been getting treatment for his psychological issues for the best part of 18 months or longer, seeing Dr Cadzow fortnightly or monthly depending on his mood. He had also received treatment from Kerr. Lewis gave evidence of the various types of medication he had been prescribed for his psychiatric condition. The impact of the physical injury from November 2010 on his psychological injury was that he was not able to look after himself and had withdrawn socially.
[27] Under cross-examination, it was the evidence of Lewis that he had broken down from the date of injury in November 2010 for reasons given as:
could not pay bills; could not maintain his lifestyle; Gold Coast was unfamiliar territory; and having to move back in with his parents at 41 years of age [Transcript
p. 1-31].
[28] In February or March 2011 he received about $3000 in redundancy from the Appellant but was still feeling pressure as he was unable to pay his bills [Transcript p. 1-32]. The financial pressures continued in the six to eight week period he was required to wait for his Centerlink payments. Upon his relocation to his parents place, the evidence was he self-medicated on five milligrams of Valium about twice a month, courtesy of his father [Transcript p. 1-35]. Lewis conceded that General Practitioner visits between November 2010 and up to 15 September 2011 were for the back injury [Transcript p. 1-36]. Around August and September 2011 a great bulk of his lows and concerns related to his financial situation and when he first saw his Psychologist in April 2012 he informed him of his financial woes and of the need to gain an income. Lewis felt he had "stuffed up" his WorkCover claim and had he stayed with WorkCover they would have looked after him and he would not have got himself into the situation he had [Transcript p. 1-38]. The WorkCover claim had ceased once he received a 100 percent clearance from Dr Cleaver and this had led to his eventual financial hardship. Since returning to the Sunshine Coast, he had never been physically capable of finding employment, but if he had looked for a job he would have got one [Transcript p. 1-40]. From the time of the injury in November 2010 all the way through had been "pretty hard" on him [Transcript p. 1-41].
Dr Cadzow
[29] Dr Cadzow, a Psychiatrist, prepared three reports for WorkCover and a letter that were tendered in the proceedings:
23 October 2012 [Exhibit 9]; 3 May 2013 [Exhibit 10]; 3 May 2013 (letter) [Exhibit 11]; and 24 July 2013 [Exhibit 12].
[30] Dr Cadzow, also the treating Psychiatrist for Lewis, indicated whilst there had been a number of different diagnoses, the primary diagnosis for Lewis is one of manic/depressive disorder with a secondary diagnosis of a panic disorder. According to Dr Cadzow, the event that took place on 15 November 2010 was the direct cause of Lewis' psychiatric problems.
[31] Dr Cadzow's reports contained information regarding:
Lewis' referral for psychiatric assessment and treatment - 12 April 2012; subsequent treatment; Lewis' history - personal and work; symptoms; mental state examination; diagnosis; investigations and special assessments; sources relied upon:
Dr Strachan; Dr Cleaver Dr David Johnson - Brain and Spinal Neurosurgeon; MRI; and CT scan.
[32] Under cross-examination, Dr Cadzow was questioned on the content of the reports tendered in the course of his evidence, giving further evidence that there was an incident on 15 November 2010 which led to Lewis developing back pain which was expected to resolve but never did and of Lewis informing him that he had never recovered from the injury [Transcript p. 1-46]. Dr Cadzow had some problem accepting that Lewis' pain was attributable to his underlying condition rather than the aggravated injury because of Lewis' description that the pain never resolved [Transcript p. 1-48]. Dr Cadzow conceded that ultimately he had relied upon Lewis being an accurate historian [Transcript p. 1-49]. Lewis had given an explanation of convincing Dr Cleaver to give him a clearance so he could access a redundancy payment and he reached the conclusion Lewis had chronic pain despite the opinion of Dr Cleaver [Transcript p. 1-50] and further that chronic pain was most often treated by psychiatrists and physicians. On 15 September 2011 being the first time Lewis had raised suffering from an injury recorded as "increasing low anxiety", it was, according to Dr Cadzow, the first time the treating Doctor was dealing with this [Transcript p. 1-51].
[33] Dr Cadzow went on to record disagreement with Dr Cleaver's conclusion of Lewis' chronic pain resolving [Transcript p. 1-50]. Dr Cadzow confirmed that Lewis had provided details of the financial stressors he was experiencing at certain times, which included:
child maintenance; loans; and loss of overtime and penalties.
[34] It was his evidence that Lewis relocated to the Sunshine Coast at the time he was exhibiting financial stress and was having difficulty in dealing with life in general [Transcript p. 1-52].
Dr Harding
[35] Dr Harding, a Consultant Psychiatrist, prepared a medico-legal report dated 19 June 2013 [Exhibit 13]. The report offered a diagnosis of Lewis developing a "Major Depression with Melancholia and possible psychotic features in the context of Chronic Pain Syndrome which was associated with a General Medical Condition that being Degenerative Back Disease". The current psychological conditions were said to be as a direct consequence of his work-related back injury and the associated life changes that followed. Lewis would appear to have had no pre-existing mental health condition prior to his back injury.
[36] The report addressed specific areas that included:
history related by Lewis; relevant past medical history; current medication; examination findings, tests or investigations if diagnosis uncertain; diagnosis of all work-related conditions; relationship of current work-related diagnosis to stated mechanism of
injury; whether the work-related condition(s) is an aggravation of any
pre-existing condition(s); any treatment, rehabilitation and return to work recommendations; suitability of participating in suitable duties program; prognosis; and whether Lewis would improve with further medical or surgical
treatment.
[37] Under cross-examination, Dr Harding agreed that Lewis had a pre-existing back condition and that the history from Lewis in terms of her report was largely contemporaneous as to how he felt on 18 June 2013 [Transcript p. 1-57]. Dr Harding accepted the back injury was an aggravation and determined that injury had become a "chronic pathway" with reliance on Dr Cadzow and Dr Cleaver's reports. On the finding of Dr Cleaver that Lewis' condition was stable and stationary, it was Dr Harding's opinion that stable and stationary does not mean a person is left without pain, it just means that a condition is no longer improving or deteriorating. Lewis continues to have ongoing pain. Questions around the back injury being pre-existing and the aggravation were said to be outside of Dr Harding's expertise [Transcript p. 1.59]. Dr Harding's opinion was Lewis had an ongoing condition, particularly his mental health problems that could still be attributable to the original physical injury [Transcript p. 1-60]. In reaching her conclusions, Dr Harding acknowledged she had placed considerable weight on Dr Cadzow's reports.
[38] In re-examination, Dr Harding's evidence was that the workplace event in November 2010 led to the development of his psychiatric condition and the many associated lifestyle changes that were necessary to be made because of his physical condition had perpetuated the continuation of that depressive condition [Transcript p. 1-62].
Submissions
Appellant
[39] It was the submission that Lewis was an employee of the Appellant on 15 November 2010 when he suffered a lower back injury in the course of his employment which was accepted as a compensatable injury by WorkCover as an aggravation of a pre-existing degeneration of the lumbar spine. Benefits were paid from 15 November 2010 and ceased in January 2011. Lewis lodged an Application for Compensation for a psychological injury, secondary to the accepted back injury in February 2012.
[40] There was no dispute that Lewis was suffering from a psychological condition with the issue for determination being whether Lewis' psychological condition is secondary to his physical injury sustained on 15 November 2010 with there being a need to consider the expert medical evidence in determining the Appeal.
Medical Evidence
[41] Dr Cleaver, Orthopaedic Surgeon called by the Appellant, provided two reports (15 December 2010 and 28 February 2011) in which he diagnosed Lewis' injury as a work-related aggravation of his pre-existing L5-S1 spondylolisthesis underlying condition and opined that "given it has been six months since the work-related injury, the work-related component of this situation, in my opinion, is stable and stationary, but I would ask that you strongly consider my request for a caudal injection prior to signing off".
[42] In the course of the proceedings, the opinion of Dr Cleaver was never challenged and more importantly he confirmed during cross-examination that where he reported Lewis' injury as stable and stationary, he meant that it had resolved and his ongoing symptoms of pain were due to his underlying spondylolisthesis. On the issuing of the medical clearance certificate, he candidly acknowledged that he could not explain the discrepancy between the opinion expressed in the 28 February 2011 report, but it was argued nothing turned on this issue because Dr Cleaver's evidence was the work-related injury would have resolved by May 2011 in any event. Dr Cleaver's explanation regarding the caudal injection was in no way inconsistent with his primary conclusions. The fact that Dr Cleaver would defer to the expertise of a Psychiatrist as to the development and existence of the cause of a psychiatric condition was said to be uncontroversial as it was not the province of a Psychiatrist to determine in this instance, what was the cause of Lewis' pain. It was submitted that the evidence of Dr Cleaver should be accepted in full as there was no cogent basis to find to the contrary.
[43] Dr Strachan, in evidence, had agreed the work-related injury that had aggravated the underlying back condition would have resolved after six months, however his evidence that it was possible to develop a psychological condition despite the aggravation injury settling was outside his expertise and there was basis to place any reliance on this aspect of his evidence.
[44] It was submitted that the vice in Dr Cadzow's evidence was that he failed to accept and defer to Dr Cleaver's opinion and to appreciate that Lewis' underlying back condition was the cause of his problem which had led Dr Cadzow to disagree with the proposition that Lewis' pain, attributable to the aggravation injury had not resolved. This failure of Dr Cadzow diminishes the credibility of his opinion.
[45] There was an awareness by Dr Harding of Lewis' pre-existing condition and of Dr Cleaver's opinion that the ongoing pain was not work-related however before acknowledging this could affect her opinion she indicated she would "like to see some evidence that he had a pre-existing injury". On being informed of such evidence (Dr Cleaver's conclusion following the review of the MRI scan dated 15 December 2010), Dr Harding correctly conceded that it was outside her area of expertise on the issue of pre-existing/aggravation. Where her evidence on the ongoing pain and disability associated with the aggravation was contrary to the evidence of Dr Cleaver, her evidence should be rejected. Dr Harding's concession that Lewis' back pain may not have been solely referable to the incident of 15 November 2010 plainly demonstrated her conclusion that Lewis' current psychological condition was a direct consequence of his related back injury cannot stand as she failed to appreciate and properly understand Dr Cleaver's findings.
[46] Dr Markou gave evidence that Lewis' psychological symptoms arose from the workplace injury on 15 November 2010 although he had not expressly stated that in his report. In the course of cross-examination, it was repeatedly put to Dr Markou that the aggravation injury ceased some six months after 15 November 2010, that his psychological condition was as a result of the underlying condition and he made the concession that there was some doubt whether his conclusion could be maintained, which revealed the importance of fully understanding Dr Cleaver's opinion and the timing of Lewis' first raising any psychological problems in order to reach a fully informed conclusion in respect of his conditions and cause.
[47] In conclusion, it was submitted that the unchallenged evidence of Dr Cleaver regarding Lewis' injury becoming stable and stationary six months after 15 November 2010 and his ongoing symptoms of pain are due to his underlying condition of spondylolisthesis, in the absence of any contrary expert Orthopaedic evidence, should be accepted by the Commission. Dr Cleaver's evidence has a significant bearing on the state of the psychiatric evidence when considered against the uncontradicted opinion of Dr Cleaver. Lewis' underlying back condition must be a relevant consideration when determining whether employment was a significant contributing factor to his secondary psychiatric claim.
[48] It was submitted, when regard was had for the evidence of Drs Markou and Harding, they had failed to fully appreciate the evidence of Dr Cleaver that the aggravation had resolved by May 2011 and any ongoing pain was referable to his underlying condition. Their evidence should not be relied upon by the Commission. Dr Cadzow's evidence which confirmed his failure to acknowledge Dr Cleaver's opinion was remarkable and his report suffered the same deficiency as Drs Markou and Harding.
[49] The medical evidence cannot support a conclusion that Lewis suffered a psychiatric injury as a consequence of the injury sustained on 15 November 2010 with the evidence demonstrating that it was not until 15 September 2011 (after the workplace injury has resolved) that Lewis began to experience symptoms of a psychiatric illness.
[50] Therefore, based on the totality of the evidence, it was submitted that the Commission cannot be satisfied Lewis' psychiatric condition arose out of his employment or that his employment was a major significant contributing factor to his condition.
[51] It was finally submitted that, accordingly, the Appeal should be allowed and the Application for Compensation (dated 29 February 2012) should be rejected with the Respondent to pay the Appellant's costs of the Appeal.
Regulator
[52] The issue for determination was whether or not Lewis' secondary psychiatric condition arose out of or in the course of his employment with the Appellant and whether that employment was a significant contributing factor to the secondary psychiatric condition.
[53] In order to succeed, the Appellant must establish, on the balance of probabilities, one of the following points:
Lewis was not a worker within the meaning of the Act at the relevant
time; Lewis did not sustain a secondary psychiatric condition at the relevant
time; the secondary psychiatric condition did not arise out of, or in the course
of, Lewis' employment with the Appellant; and the employment with the Appellant was not a significant contributing
factor to the secondary psychiatric condition.
[54] All of the psychiatric evidence before the proceedings agreed that the development of Lewis' psychiatric condition arose because of the work-related event on 15 November 2010 with no expert psychiatric evidence led by the Appellant with their case solely resting with the acceptance of the Orthopaedic evidence of Dr Cleaver. It was submitted that extreme caution should be exercised accepting the veracity of Dr Cleaver's opinion, particularly in light of the Commission's line of enquiry on the final day of hearing.
[55] In reference to the background matters of the Appeal, the submission dealt with the accepted claim (15 November 2010) which was closed by WorkCover when Lewis managed to secure a full return to work clearance and on 29 February 2012 he lodged the application for the matter subject to this Appeal.
[56] The Appeal was said to be misconceived given the opinion of Dr Strachan who maintained the view that Lewis' psychological condition was related to the work-related injury of November 2010. The weight of unanimous psychiatric evidence sufficiently enables the Commission to find to the requisite standard that the injury sustained by Lewis on 15 November 2010 was a significant contributing factor to the development of his psychiatric condition. There was an underestimation of the fact psychiatric conditions have a life of their own and because the physical injury resolves it does not mean the psychiatric injury did.
[57] The Commission, based on the evidence of the treating Psychiatrist, independent Psychiatrists, supported by the contemporaneous medical opinion of Dr Strachan, could make a finding that Lewis' secondary psychiatric condition arose out of his employment with the Appellant and that the employment was a significant contributing factor to the injury. The submission acknowledged Lewis' employment may not have been the most significant contributing factor to his injury, however the Appellant has not, in the absence of contrary psychiatric evidence, and no alternate proposition, demonstrated his employment was not a significant contributing factor to the injury.
[58] The psychiatric evidence was addressed with reference to:
Dr Cadzow being satisfied on 12 April 2012 that Lewis' injury was
consistent with his description of cause; Dr Markou was a most impressive witness who remained unmoved
during cross-examination stating, at one point:"That psychiatric condition, you know, as I said several times, has a life of its own. Simply because the original condition, the aggravation ceases doesn't mean that the psychiatric condition does, and it certainly - the onset of that psychiatric condition is referable to the original injury, to the aggravation, rather"; and
Dr Harding in her written report of 19 June 2013 expressed an opinion that Lewis' current psychological conditions are a direct consequence of "his work related back injury and the associated life changes associated with it". Under Axis 4 of the diagnostic criteria, Dr Harding nominated the work-related event as being November 2010 and despite there being non work-related stressors the work-related event was still a significant contributing factor to the injury.
[59] The evidence, it was submitted supports a finding on the balance of probabilities that Lewis' sustained a personal injury arising out of, or in the course of employment and his employment was a significant contributing factor to the injury with that injury being a secondary psychiatric condition. The appropriate diagnosis is one of a depressive condition.
[60] In terms of arising out of, or in the course of, employment the submission relied
1
upon Lackey v WorkCover Queensland where the Industrial Court held that "arising out of" involves a causal or consequential relationship between the employment and the injury, but does not require a direct or proximate relationship. Given the relatively undemanding nature of this test and the beneficial interpretation of the legislation, the Commission ought find a causal link between the nature of Lewis' employment, the back injury sustained on 15 November 2010 and his psychiatric condition. There was a direct and proximate relationship.
[61] There were a number of other authorities cited to support employment being a significant contributing factor to the injury which included:
Adelaide Stevedoring Co Pty Ltd v Forst[2]; Ramsay v Watson[3]; Horton v Q-COMP[4]; and Pacific Coal Pty Ltd v Gaudy[5], where Justice Lee observed that: [2][3][4][5]"…it is not the function of a court of law to resolve questions of
medical or indeed any other science. The court's duty is to find facts and, when expert evidence has been given, so far as it is reasonably possible to do so, to look not merely to the expertise of the expert witness but to examine the substance of the opinion expressed. In cases like this where the experts differ the court will apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted. The evaluation of an expert's evidence will also involve questions of credit and credibility."
[62] In light of the medical opinions expressed by Drs Cadzow, Markou and Harding, together with the corroborative evidence of Dr Strachan, it was submitted the Appellant had been unable to demonstrate that Lewis' secondary injury was not connected to his employment. The reality is that the injury of 15 November 2010 had materially contributed to the development of the psychiatric condition and had there not been the 15 November 2010 injury, the inference is that Lewis would not have required psychiatric intervention and treatment.
[63] Therefore, the only appropriate finding for the Commission to make when the beneficial nature of the legislation is taken into account is that Lewis' employment was a significant contributing factor.
[64] It was submitted that the Commission ought not be satisfied that the Appellant has discharged the onus to show that the decision of the Regulator was wrongly made and ought to dismiss the Appeal.
[65] The Regulator sought the following orders:
the Appeal be dismissed; and the Appellant pay the Respondent's costs of and incidental to the Appeal.
Conclusion
[66] There were no levels of disputation regarding the status of Lewis being a "worker" in accordance with s 11 of the Act, or that he was suffering from a psychiatric/psychological condition. Other matters that emerged in the course of proceedings that were not of contest were:
Lewis suffered a physical injury on 15 November 2010 whilst in the employ of the Appellant for which a claim for compensation was accepted by the relevant insurer; the injury was an aggravation; in the course of treating the physical injury, an MRI was conducted on 15 December 2010 which found that Lewis had a "narrowing and degeneration of the L5/S1 disc". This condition is described as the "underlying condition"; the underlying condition prior to the 15 November 2010 injury was
asymptomatic; in January 2011 Lewis, due to pressing financial needs, successfully approached Dr Cleaver seeking the issue of a Workers' Compensation Medical Certificate that confirmed he was fully fit to return to work. The certificate was issued on 12 January 2011; and on 29 February 2012 Lewis lodged a new Application for Compensation for a secondary psychological injury alleged to have been attributable to the injury to his back sustained on 15 November 2010.
[67] The case for the Appellant substantially relied upon the evidence of Dr Cleaver, an Orthopaedic Surgeon who first consulted with Lewis on 15 December 2010 and provided treatments ongoing where he arranged for Lewis to have a number of injections of hydrocortisone and local anaesthetic for the purposes of pain relief. In a medico-legal report prepared on 28 February 2011 [Exhibit 16], Dr Cleaver confirmed that Lewis' underlying condition had been aggravated by the incident at work on 15 November 2010 and given the initial injury was five months old, the work-related component was, in his opinion, stable and stationary.
[68] The report went on to state that Lewis did not have the capacity to upgrade to full hours and/or normal duties due to his level of pain, which on the face was quite contrary to the Workers' Compensation Medical Certificate issued by Dr Cleaver on 12 January 2011 where Lewis was cleared to return to his previous role as fully fit for normal duties. The report contained a strongly worded request to WorkCover that Lewis be given a caudal injection prior to "signing off" on his claim. In cross-examination, Dr Cleaver explained the reasons for the request as being "a goodwill gesture, because very little had been [done] for this guy in the six months since his injury". Dr Cleaver acknowledged the discrepancy and, in effect, said he was trying to help out Lewis.
[69] Also relied upon was the evidence of Dr Strachan who, in a prepared report of 10 September 2013 [Exhibit 2] opined it was unlikely that the event of 15 November 2010 would now be contributing to Lewis' symptoms in the lower back, however having treated Lewis in May, June, July, August and September 2011 for the back injury was of the view that the depression reported to him on 15 September 2011 was associated with his back injury. Whilst Dr Strachan concurred with Dr Cleaver's opinion that the work injury of 15 November 2010 should have resolved in a four to six month time period, it did not prevent him from putting forward a view in his prepared report that Lewis reasonably related his anxiety and depression to his injury in November 2010.
[70] There are, in my view, some concerns with the evidence of Dr Cleaver who opined on 28 February 2011, Lewis' work-related injury, sustained on 15 November 2010 was stable and stationary when he [Dr Cleaver] was at that time requesting that approval be given for a caudal injection which is a clear indication that there were pain issues still at play for Lewis at the time. Apart from Dr Cleaver's opinion that injuries of the type suffered by Lewis on 15 November 2010 generally resolve in a four to six month time frame, there was an absence of further medical evidence relating to Lewis' injury specifically that would assist with accepting Dr Cleaver's proposition with any surety that beyond 28 February 2011 it was the previously asymptomatic underlying condition that was solely causative of Lewis' problems. There remains an issue on the credibility of Dr Cleaver's evidence and, in particular, of the content of his 28 February 2011 report when one considers that on 12 January 2011 he was prepared to certify that Lewis was fit to return to normal duties and yet provide a significantly different opinion some seven weeks later regarding Lewis' return to the role he had prior to 15 November 2010.
[71] Dr Strachan, as Lewis' treating General Practitioner, was well placed to observe Lewis in the period between May and 15 September 2011 when Lewis first complained of psychological issues and he holds the view that Lewis' depression was associated with the back injury which he felt was a combination of underlying conditions and the work event of 15 November 2010.
[72] The evidence of the three Psychiatrists in the proceedings was uncontroversial to the extent they unanimously opined that Lewis was suffering a psychiatric condition that was secondary to the injury suffered by him on 15 November 2010. The uncontested evidence made a number of significant points including:
when the original condition ceases that does not mean the psychiatric
condition does (Dr Markou); a psychiatric condition has a life of its own (Dr Markou); and Lewis' current psychological conditions were a direct consequence of his back injury of 15 November 2010 and associated life changes (Dr Harding).
[73] The fact that the evidence of the three Psychiatrists was generally undisturbed in the
course of cross-examination has left that evidence with standing to the effect that on
the balance of probabilities it is safe to conclude Lewis was suffering from a
secondary psychiatric condition and, in the absence of acceptable evidence to the
contrary, the injury arose out of his employment with the Appellant, as a result of
the physical injury sustained on 15 November 2010 and was not dissimilar, in this
6
instance, to the cited authority of Lackey v WorkCover Queensland in terms of there being a consequential relationship between the employment and the injury. In accepting the evidence of the three Psychiatrists, I have considered Dr Markou's evidence in cross-examination around further clarification of the onset of injury and of seeking treatment for Lewis' psychiatric condition [Transcript p. 1-24] and am satisfied this does not generally affect the opinion expressed by Dr Markou to any great extent.
Finding
[74] The Commission, having considered the evidence, submissions and material before the proceedings, finds that Lewis at the relevant time was, for the purposes of s 11 of the Act, a "worker" and that he suffered a personal injury being a psychiatric/psychological injury.
[75] The Appellant, in the course of the proceedings, failed to establish within the requisite standard of proof that the personal injury suffered by Lewis was not a secondary psychiatric/psychological injury that had arisen out of, or in the course of, his employment and that the employment was not a significant contributing factor to the injury.
[76] Therefore, the Appeal is dismissed and the decision of Simon Blackwood (Workers' Compensation Regulator) of 21 February 2013 is confirmed and the application of Lewis for compensation for a secondary psychiatric/psychological injury is one for acceptance.
[77] The matter of costs is reserved.
[78] I order accordingly.
1
Lackey v WorkCover Queensland [2000] QIC 43
Adelaide Stevedoring Co Pty Ltd v Forst (1940) 64 CLR 538
Ramsay v Watson (1961) 108 CLR 642
Horton v Q-COMP (unreported, Gladstone Industrial Magistrates Court, Marrow, 15 May 2007)
Pacific Coal Pty Ltd v Gaudy [1996] QCA 525
6 Lackey v WorkCover Queensland [2000] QIC 43
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