Jeffrey Goulding v Simon Blackwood (Workers' Compensation Regulator)
[2016] QIRC 45
•19 April 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Jeffrey Goulding v Simon Blackwood (Workers' Compensation Regulator) [2016] QIRC 045 |
PARTIES: | Jeffrey Goulding v Simon Blackwood (Workers' Compensation Regulator |
CASE NO: | WC/2015/240 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 19 April 2016 |
HEARING DATES: | 1, 2 and 3 February 2016 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Black |
ORDERS: | 1. Appeal dismissed. 2. The decision of the regulator dated 30 July 2015 is confirmed. 3. The matter of costs is reserved. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether injury caused by fall at work - whether psychological injury sustained secondary to the physical injury - injury does not result in any significant lost time until twelve months after the event - degeneration and pre-existing injuries in contention. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32, s 550 |
| APPEARANCES: | Mr S. Cleary, Counsel, instructed by the Shine Lawyers for the Appellant. |
Decision
Introduction
Jeffrey Goulding ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") dated 30 July 2015. The effect of the decision was to decide that the appellant had not sustained an injury pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act"). The appellant had lodged a Notice of Claim for damages with WorkCover on 2 February 2015.
At the time of the claimed injury the appellant had been employed by Ventnor Grove Pty Ltd on a grape and citrus farm located near Mundubbera. He performed general labouring duties which included spraying citrus trees and grape vines, slashing, tractor driving, and general maintenance functions.
The appellant said that he injured his back when he fell from a spray cart in the first week of December 2012. He reported the fall to a co-worker either on the day of injury or the next day but was able to continue with his work and he completed an eight hour shift. He worked an eleven hour shift the following day but did not work on the weekend. He completed his normal shift at work the following Monday before attending on his general practitioner for back pain.
The regulator conceded that the appellant was a "worker" for the purposes of the Act and accepted that the appellant suffered from lower back pain and from a psychological injury. The regulator however did not accept that the appellant's injuries were causally connected with his employment pursuant to s 32 of the Act.
Legislation
The appellant appeals the regulator's decision pursuant to s 550 of the Act. The appeal to the Commission is by way of a hearing de novo. Section 32(1) of the Act relevantly provides that an injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. Section 32(3)(b) of the Act provides that an injury includes an aggravation of a personal injury if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation.
Evidence
During the course of the proceedings, evidence was provided by ten witnesses. The witnesses for the appellant were as follows:
·Mr Jeffrey Goulding
·Dr Fakhir Rafeeq
·Mr Kenneth Jarvis
·Dr Scott Campbell
·Dr Axel Estensen
The witnesses for the regulator were as follows:
·Danielle Meyer
·Valerie Zipf
·Craig Meyer
·Dr Richard Williams
·Dr Alfred Chung
History
The version of events provided by the appellant in the proceedings differed from earlier versions either included in his notice of claim for damages or in the history given to medical specialists.
The appellant's evidence in the proceedings was to the effect that he suffered a fall at work on the morning of Thursday 6 December 2012. Notwithstanding the fall he continued working but finished work a little earlier than usual that day. Either that day or the following day he told a co-worker about the fall. The following day he worked a normal shift, but declined to work over the weekend because of back pain. He then worked a normal shift on Monday 10 December 2012 before attending on his general practitioner after work on that day. The appellant worked the following day and continued to work as normal until mid-November 2013 when he aggravated his back condition in another incident at work.
The appellant said that after 10 December 2012 he was able to continue to perform his normal duties with the assistance of over the counter pain medication. After he aggravated his back condition in November 2013 he attended on Dr Rafeeq on 18 November 2013 who treated his condition with Panadeine Forte and ordered a CT scan. The appellant subsequently attended on Dr Rafeeq on 26 November 2013, 5 November 2013, 9 December 2013 and 16 December 2013 before being referred to the Bundaberg Fracture Clinic on 16 December 2013. On 5 December 2013 the prescription medication was changed to Oxycontin and a referral to an orthopaedic specialist was discussed.
The appellant's ability to perform his normal work was impaired after the mid-November 2013 incident and he was initially redeployed to alternative duties before being told to take some time off work. He was off work between 15 December 2013 and 6 January 2014 before resuming work in a restricted capacity on 7 January 2014. Dr Lockey had certified the appellant as unfit for duty between 18 December 2013 and 6 January 2014 and allowed a resumption of work on 7 January 2014 on the condition that the appellant did not lift weights exceeding ten kilograms. The appellant's employment with Ventnor Grove ended when he was retrenched on 4 March 2014.
In his notice of claim for damages on 2 February 2015 the appellant said that he continued working after the fall but eventually succumbed to the pain and went home around 11.00 am. He said that he reported the incident to Mr Jarvis. He said that he returned to work on 10 December 2012 after visiting his general practitioner. The appellant said that he experienced ongoing back pain through until March 2014 when his services with Ventnor Grove were terminated. The appellant also said in the notice of claim that he exacerbated his back problem on or about 14 November 2013 while dismounting from a tractor.
The appellant attended on Dr Estensen on 17 February 2015 for the purpose of undertaking an independent psychiatric medico legal assessment. The effect of the history recorded was that after the fall at work the appellant reported the injury to his supervisor and went home. The appellant said that when he attended on his GP the following Monday he was diagnosed with a muscle strain. He said that after a few days off work he returned to work but due to pain was only able to keep working for one or two weeks. Six weeks after his return to work he was retrenched.
The appellant was also asked to undertake an independent medical assessments with Dr Williams and Dr Chung on 9 March 2015. The effect of the history recorded by Dr Williams was that the appellant's pain increased over the weekend following the fall and he attended on his general practitioner on 10 December 2012. A diagnosis of muscle spasm was entered and the condition was treated with rest and analgesics. The appellant then "left the work place for six to seven weeks before returning to work in a light duties capacity" with a 10 kilogram lifting restriction. The history recorded by Dr Chung indicated that after the fall at work the appellant was able to complete work on the day but the pain worsened over the weekend. He attended on his general practitioner where his injury was diagnosed as a muscle sprain. However as time passed the pain worsened and an MRI scan was undertaken on 26 May 2014.
Dr Campbell interviewed and examined the appellant on 18 March 2015. The effect of the history recorded was that after the fall at work in early December 2012, the appellant attended on his general practitioner and was treated with rest and Panadeine Forte. The appellant was subsequently involved in a second workplace incident on 15 November 2013 in which he aggravated his lower back injury. He was treated by his general practitioner for back pain on a number of occasions between 18 November 2013 and 16 December 2013. Oxycontin was prescribed, radiological investigations completed, and a referral to an orthopaedic surgeon arranged. Dr Campbell's report noted that following the December 2012 incident the appellant had time off work, while following the November 2013 incident he had six weeks off work on annual leave. Upon returning to work the appellant's services were terminated "as he had difficulty performing manual handling tasks".
The most significant inconsistencies are those that appear in the histories provided to Dr Estensen and Dr Williams about what transpired after the fall at work in December 2012. On the premise that the history was accurately recorded, the appellant told:
·Dr Estensen that he could only keep working for one or two weeks after the fall when in fact he continued working for almost a year;
·Dr Williams that after the fall he was off work for six or seven weeks before returning in a light duties capacity when in fact he did not stop work at all after the injury.
Other inconsistencies included:
· The appellant told Dr Campbell that he took six weeks off work after the second injury when in fact he only took three weeks off work;
· The appellant told Dr Campbell that when he returned to work his services were terminated because he had difficulty in performing manual handling tasks. In fact, the appellant worked for two months before he was retrenched because of a lack of work;
· Dr Campbell recorded that the appellant was treated with Panadeine Forte after the consultation on 10 December 2012, when in fact this medication was not prescribed until 18 November 2013;
· The appellant said in his notice of claim that he went home at 11.00 am on the day of the fall when in fact he completed an eight hour shift and finished work at 1.45 pm. He also said that he visited his general practitioner before resuming work on 10 December 2012, when in fact he completed an eight hour shift at work and attended on his doctor after work;
· Numerous other inconsistencies in the history recorded in the report of Dr Estensen including that the appellant told Dr Estensen that after the fall at work he reported the injury to his supervisor and went home, when in fact he told a co-worker about the fall and worked a full day;
· The appellant did not inform any of the specialists that he suffered from long standing back problems.
The Appellant's Case
The appellant submitted that the evidence supported a finding that the appellant injured his back in a fall at work in early December 2012. The appellant informed a co-worker of the incident, took time off over the weekend to rest, and reported back pain to his general practitioner the following Monday. Records of subsequent attendances on general practitioners attribute the cause of ongoing back pain to a fall at work in or around December 2012.
The appellant maintained that the evidence of the co-worker, Mr Jarvis, corroborated the appellant's version of events. It was submitted that Mr Jarvis' evidence should be accepted as both credible and independent in circumstances where Mr Jarvis gave his evidence notwithstanding that he was a current employee of the employer, and that the employer was giving evidence in the proceedings on behalf of the regulator.
The appellant said that there is no reason not to accept that the relevant medical records constituted an accurate account of what the appellant told his general practitioner at the time of consultation. In this regard it was pointed out that the medical records which referenced a fall at work predated the consideration of legal proceedings by the appellant, and also reflected a version of events provided by the appellant while he remained in the employment of Ventnor Grove.
The appellant argued that the evidence of Dr Campbell should be preferred in any determination about the relevance of any pre-existing back condition. Dr Campbell considered that any pre-existing condition was relatively minor and had not impeded the performance of work by the appellant for many years prior to 6 December 2012. This conclusion was consistent with the medical records which disclosed that the appellant had not sought medical treatment for back pain prior to December 2012. In the circumstances it was consistent with the appellant's medical history for Dr Campbell to conclude that any longstanding back condition did not significantly impede the appellant as he went about his daily life. It was in this context that Dr Campbell accepted that there was a direct causal link between the fall at work in December 2012 and the onset of significant back pain which persisted until the aggravating incident in November 2013.
The appellant also relied on the evidence of Dr Campbell in submitting that only limited weight should be attached to the fact that the appellant was able to continue working for almost a year after the incident at work. It was Dr Campbell's view that there was nothing exceptional about a circumstance wherein the appellant sought treatment for a back injury in December 2012 immediately after a precipitating event but did not seek further medical attention for some considerable time.
The appellant submitted that whatever the difference of opinions between Dr Campbell and Dr Williams about the seriousness of the injury said to have occurred on 6 December 2012, both doctors concluded that the appellant's fall caused a lumbar spine injury.
The appellant did not accept that the regulator's evidence supported a conclusion that involvement in a car accident many years earlier was relevant to any current back condition. The view was that it would have been completely inconsistent and implausible for the appellant to have attributed his back condition to a car accident in January 2014 when he had told Dr Lockey only three weeks earlier and Dr Rafeeq only seven weeks earlier that his back condition had been caused by a fall at work. Alternatively, it was put that if the appellant did suggest some connection, it was conceivable that he did so out of concern for job security and because he did not want to jeopardise his ongoing employment with a new employer.
Finally, it was the appellant's submission that even if an association were found to exist between the appellant's current back condition and a car accident many years earlier, such a finding could not invalidate the corroborated evidence about an injury at work in the first week of December 2012.
The Regulator's Case
The regulator submitted that the evidence supported a finding to the effect that the appellant's current injury (the injury that was investigated in November 2013) is an aggravation of pre-existing chronic back pain which was chronic prior to any injury suffered on 6 or 7 December 2012. It was submitted that the employment was not a significant contributing factor to any injury that the appellant might have suffered on 6 or 7 December 2012. If any such injury were employment related, the effects of the injury would have dissipated after six weeks.
Dr Williams considered that the chronology supported a view that the appellant's attendance on Dr Rafeeq on 18 November 2013 was referable to the second incident and not the incident on 6 December 2012. Further Dr Williams considered that it was unusual, given the nature of the trauma described by the appellant, for one year to elapse before any CT examination was ordered. It was Dr Williams opinion that the appellant had degenerative lumbar spondylosis and that this condition caused his symptoms rather than any trauma.
It was the regulator's position that the seriousness of any injury suffered on 6 December 2012 was substantially overstated by the appellant. The injury did not preclude the performance of work and did not prevent the appellant from completing his shift on 6 December 2012. Further the appellant worked 11.5 hours the day after the fall and worked 8.75 hours on the following Monday before attending on Dr Kumar. He continued to work as normal after his appointment with Dr Kumar.
It was submitted that Dr Williams' evidence should be preferred to the evidence of Dr Campbell. Dr Campbell's opinion was substantially predicated on a history provided to him by the appellant and excluded any adequate consideration of the appellant's long standing back problems. Despite the entries in the medical records about chronic back pain, Dr Campbell's opinion was based on a conclusion inconsistent with the evidence that the appellant was "symptom free for many years" before 6 December 2012.
It was also submitted that the regulator's evidence about a prior car accident should be preferred to the evidence given by the appellant. There was no reason for the employer to ask the appellant to document matters relevant to his car accident unless the appellant had raised a connection with his back condition.
The appellant's credibility was challenged on a number of grounds. In particular the regulator drew attention to the inconsistencies in the versions of events provided by the appellant to medical specialists, and the exclusion from the history provided of any reference to a long standing back injury.
In terms of the claimed psychological injury it was argued in effect that the evidence could not support a conclusion that a fall at work in December 2012 contributed to a worsening of the appellant's mental health as diagnosed by Dr West on 24 January 2013. Particular references were made to concessions made by Dr Estensen which acknowledged the significance of the November 2013 incident, and on the failure of the appellant to inform Dr West in January 2013 of a fall at work in December 2012.
Medical Records
The medical records of the Mundubbera Medical Centre were in the evidence as Exhibit 7. The records cover an earlier period between December 2003 and August 2005 and a second period from January 2010 to April 2014. Back pain is not mentioned in records of the earlier consultations nor is it mentioned in consultations occurring in 2010, 2011, and before December 2012. In the 2010 to 2012 period the appellant visited the Mundubbera Medical Centre on 28 occasions before reporting "chronic low back pain" with Dr Kumar on 10 December 2012. Subsequent to this appointment, the appellant attended at the Centre on five occasions in 2013 before raising back pain with Dr Rafeeq on 18 November 2013.
The medical records of the Mundubbera Hospital were tendered into the evidence as Exhibit 9. These records disclose that in addition to his attendances on the medical centre the appellant also sought treatment from the hospital on a number of occasions in respect to both psychological and physical ailments. In terms of physical injuries, only one attendance had any relevance to the proceedings. On 14 November 2010 the appellant sought treatment for a laceration to the centre of his back following a fall off a ladder. The notes indicate that the laceration was cleansed and the appellant was informed to return if he had any concerns.
While Dr Rafeeq gave evidence in the proceedings, he did not hold an independent recollection of the relevant consultations. Dr Kumar did not give evidence. In the circumstances considerable interest was taken in the records of the appellant's relevant consultations with Dr Kumar and Dr Rafeeq.
The record of the 10 December 2012 consultation disclosed that the appellant attended on Dr Kumar because of a "perianal abscess" and because of "back pain". The appellant had previously presented to the emergency department of the Mundubbera Hospital with a perianal abscess on 29 May 2012. On that occasion he was treated with Augmentin Duo Forte and Panadeine Forte. On 10 December 2012 a prescription for Augmentin Duo Forte and Voltarin Rapid was issued. The record did not disclose whether the Voltarin Rapid was prescribed for back pain or the abscess, or both. However the prescription for Voltarin Rapid was ceased on 17 December 2012 and did not appear to have any continuing application.
The 10 December 2012 consultation record included two entries related to back pain:
·Low back pain – taking panadeine tabs for pain
·Chronic low back pain – drives tractor on farm
The reason for contact for the 18 November 2013 consultation with Dr Rafeeq was listed as "back pain" and the entries deal extensively with the subject. The entries included the following:
·Chronic low back pain for 1 year
·Worse for last 2 weeks
·Had a fall at school many years ago and has had back problems since then
·Had another fall at work 1 year ago
The entry about a fall at work was repeated in the record of the appellant's subsequent consultation with Dr Rafeeq on 26 November 2013. An entry in the consultation record of the appellant's attendance on Dr Lockey on 16 December 2013 also referred to a fall at work. Dr Lockey's notes included the following entries:
·Low back pain, weakness both legs
·Symptoms for at least 12 months
·Fall about 14 months ago fell backwards off spraying cart
The proposition that the appellant suffered from chronic and/or longstanding back pain which preceded the incident at work on 6 December 2012 relied on the medical records of the consultations on 10 December 2012 and 18 November 2013, and on the evidence of regulator's lay witnesses about a causal link with a car accident. The appellant however denied that he had a longstanding back problem, and in particular, he denied that either a car accident or a fall at school caused back problems.
How the term "chronic back pain" should be defined was discussed in the evidence. It was Dr Williams' evidence that chronic back pain referred to back pain that persisted for more than three months after the onset of pain. Dr Rafeeq's evidence was to the effect that pain becomes chronic if it persists for more than six months. Dr Campbell's evidence about the meaning of chronic back pain was not inconsistent. He said the term "chronic" refers to pain persisting more than two weeks and up to two years or longer. It followed that if the appellant reported chronic back pain on 10 December 2012, the onset of pain must have preceded any incident at work on 6 December 2012. The entry in the record of 18 November 2013 about back problems being experienced since a fall at school is not inconsistent with a reporting of chronic back pain.
The record of 10 December 2012 consultation did not specify any diagnosis relevant to the cause of the appellant's low back condition. It was the appellant's evidence that Dr Kumar told him that the condition involved a muscle sprain. This evidence is consistent with the history recorded by Dr Williams, Dr Chung and Dr Estensen. Dr Williams' report says that a "diagnosis of muscle spasm was made" and states that the appellant was "treated with rest and analgesics". Dr Chung's report states that Dr Kumar had told the appellant that "it was a muscle sprain", while Dr Estensen's report says that the appellant was diagnosed with "a muscle strain".
While the record of the 10 December 2012 consultation is evidence that the appellant reported back pain, there are elements of the record which do not assist the appellant's case that the most significant cause of the back condition investigated in November 2013 was an incident at work on 6 December 2012:
·The appellant did not attend on Dr Kumar for only back pain. The notes suggest that the abscess was at least an equal imperative;
·The doctor's physical examination appeared to be focussed on the abscess, not the back condition. The notes do not disclose that Dr Kumar conducted a physical examination in respect to the back condition (contrast Dr Kumar's notes with the notes of Dr Rafeeq on 18 November 2013);
·The entry referable to "chronic low back pain" implies or suggests that any back pain reported by the appellant during the consultation was referring to something other than a traumatic event occurring only a few days earlier;
·While the notes included a reference to the work activity of "tractor driving", no record was made of a fall at work;
·The notes do not disclose that any treatment plan was agreed. While there was conjecture about the prescription of Voltaren, this possibility was not consistent with the appellant's evidence that he only relied on over the counter medicines. In any event the prescription for Voltaren was ceased a week later on 17 December 2012;
·Dr Kumar did not respond to the complaint by issuing a medical certificate providing for time off work, he did not recommend alternate or light duties, and he did not refer the appellant for radiological investigations;
·To the extent that it can be discerned from the notes, Dr Kumar's response to the reporting of back pain seemed to be more consistent with a history of a long standing back condition that was being managed, rather than the notification of a serious fall at work only a few days earlier.
The 18 November 2013 record of consultation does assist the appellant's case to the extent that it records a history provided by the appellant to the effect that the back pain that he was reporting was caused by a fall at work a year earlier, and that he had experienced back pain since that time. However the inclusion of an entry to the effect that the appellant had experienced back problems for many years indicated that the appellant was not exclusively linking his back condition with the fall at work.
In terms of the car accident, it was the evidence of Craig and Danielle Meyer and Ms Zipf that the appellant had told them on 7 January 2014 that he had suffered back problems ever since a car accident many years earlier. The effect of Ms Meyer's evidence was that on or around 7 January 2014 the appellant provided her with a doctor's certificate which stated that he was fit to resume work on 7 January 2014 subject to the restriction that he not be allowed to lift weights greater than 10 kilograms. It was her evidence that when she questioned the appellant about the matter he informed her that his back condition was attributable to a car accident that occurred many years earlier and assured her that his condition would not affect the performance of his duties (spraying and tractor driving). In response Ms Meyer asked the appellant to confirm in writing that his back condition was related to a prior car accident.
The appellant had canvassed this matter when providing a history to Dr Estensen on 17 February 2015. Pages five and six of Dr Estensen's report (Exhibit 17) disclose that the appellant referred to a "request from his employer to write a statement about a car accident which he had prior to his fall". It was the appellant's view that in making the statement he was required to "attribute his current back pain and symptoms" to the car accident. The appellant told Dr Estensen that he "declined to provide this statement which he felt would absolve his employer of the responsibility of his injury".
In his evidence in the proceedings the appellant confirmed that he had been asked to provide a statement. He maintained however that while he was involved in a car accident, the accident did not result in any back injury and did not prevent him from continuing with whatever work he was undertaking at the time.
Ms Zipf had worked for Ventor Grove since October 2012. Ms Zipf's evidence was that she recalled a conversation which included mention of the appellant's back condition and an earlier car accident. The conversation involved herself, Ms Meyer and the appellant. She said that during the conversation Ms Meyer asked that the appellant "write a letter just so we could file it and keep our records up to date".
It was Mr Meyer's evidence that he first met the appellant on 7 January 2014 when the appellant turned up for work with a medical certificate relating to a sore back. It was his evidence that (T2-54):
" … And I said, well, what’s the problem. And he said, well, I had a car accident years go. I get sore back every now and again. I also got a tumour on my back, which I was a bit taken from that as well. And I said, you know, you’re back at work. Are you right to work. And he says, yes. I just live with it, he said. And I said, are you going to be right to perform your duties of spraying on the tractor, which is – you know, the medical certificate said light duties. And I said, are you right for tractor driving. And he says, yeah, I’m fine."
While I am inclined to accept the version of events provided by the regulator's witnesses, I do not think that a lot turns on the evidence adduced about the car accident. Firstly, the car accident happened many years earlier and on the available medical records, the appellant had not sought treatment for any back condition. Secondly, I do not discount the appellant's submission that the appellant might have alluded to a prior accident to reassure his employer that the back problem subject to the medical certificate would not interfere with the performance of his normal work. Thirdly, the car accident is but another reference to a pre-existing back condition which had been acknowledged and factored in by Dr Campbell. Finally, apart from considerations of credit, a finding adverse to the appellant about the car accident does not preclude a finding that the appellant injured his back in a fall at work in December 2012.
Notwithstanding the aforementioned considerations, no explanation has been given for why in the space of seven weeks the appellant would variously attribute his back condition to either a fall at work, a fall at school, or to a car accident.
While Dr Campbell acknowledged that the appellant may have, or did suffer from, a pre-existing condition, he was of the view that the complete absence in the medical records of any reporting of back pain was consistent with a factual scenario wherein the appellant's long standing condition had largely resolved and that he was able to get on with his life without requiring medical treatment up until his fall at work in December 2012. It was Dr Campbell's evidence that while a fall at school might have caused back problems for the appellant some time in the past, the appellant had been free of symptoms for some time prior to December 2012.
Reporting of Injury
Despite having completed injury or incident report forms in respect to workplace incidents occurring on three other occasions (11 July 2012, 21 November 2012 and 13 May 2013), the appellant did not complete any form, nor notify his employer, that he had hurt himself at work in December 2012. While the appellant suggested that he had spoken to Ashley Meyer about the incident at some point in time, Ashley Meyer was not called to give evidence in the proceedings and I am not inclined to accept the appellant's evidence on this issue.
The appellant said however that he did inform Mr Jarvis about the fall. In his evidence Mr Jarvis confirmed that the appellant had told him that he had fallen off a spray cart and hurt his back. He could not recall when the conversation had taken place but he thought that the conversation occurred in the morning after he had been loading or unloading his truck. He was walking to the workshop at the time for the purpose of washing his hands. He also said that the appellant showed him a mark or a graze on his back and that the appellant looked like something was amiss.
The veracity of Mr Jarvis' evidence was supported by the fact that Mr Jarvis continued to work for Ventnor Grove at the time of giving evidence and in circumstances where his employers were giving evidence for the regulator. It might be inferred in these circumstances that Mr Jarvis was unlikely to give anything other than a truthful account.
Mr Jarvis' support however was not unequivocally expressed. Firstly, a review of the time sheets indicated that Mr Jarvis would not have been loading his truck on 6 December 2012, suggesting that the appellant could not have told him about his fall on 6 December 2012. Secondly, Mr Jarvis could not remember with any precision when the conversation took place. Thirdly, it was possible that Mr Jarvis might have been recalling a discussion about a different injury. In this regard the appellant had completed an injury form on 21 November 2012 (Exhibit 27) in respect to a strain affecting "Leg in to Back" which occurred when the appellant fell or stepped in a hole while walking back to the workshop. The appellant had written on the form that he reported the injury to "Ken Jarvis & Carol" at 9.15 am. Notwithstanding these limitations, I accept Mr Jarvis' evidence that some time during his employment with Ventnor Grove, and around 2012, the appellant told him that he had suffered a fall from a spray cart at work.
The Intervening Period
A significant matter in contention was whether the nature and extent of the injury claimed to have been sustained on 6 December 2012 was consistent with the appellant's behaviour after the event wherein he was able to continue working without medical assistance for almost a year. In his evidence the appellant was unable to provide any useful explanation for the apparent inconsistency (T1-49):
"If you were in so much back pain why would it take you some 11 months before you went back to a GP?‑‑‑No idea, mate.
And in that time you could have been only using over the counter drugs, couldn’t you?‑‑‑Yes".
The appellant's further evidence was recorded at T1-51 and T1-52:
"‑ ‑ ‑ after you said you had this really bad fall, and you had back pain ever since. I’m asking you about those 11 months. Why didn’t you go and get medical help?‑‑‑I don’t know."
…
"A GP?‑‑‑Yeah. He said it was just muscle, right. So I just lived with it.
Until November the 18th, 2013, 11 months later when you went back to a GP; right?‑‑‑Honestly, mate, I can’t remember. I’m no good with time, dates.
I’m telling you – we’re starting at December, right?‑‑‑Yep.Early December 2012. The next time you went and saw a GP was November the 18th, 2013?‑‑‑Okay.
That’s about 11 months difference?‑‑‑Yep.
If you were in so much pain, why didn’t you seek medical treatment during that 11 months?‑‑‑I don’t know."
The appellant did eventually put forward the proposition that he "probably should have" gone back to the doctor in the eleven months following the incident on 6 December 2012 (T1-68):
"But thinking about what – not now, but that period for the first year after the injury, you said you probably should have gone back and saw a GP during that time?‑‑‑Yeah, and get checked out a bit better than just listening to whoever was on saying it was just muscle."
A difficulty with the veracity of this explanation however is that, according to the medical records, the appellant did visit a general practitioner in the period between 10 December 2012 and 18 November 2013. He visited a general practitioner on 17 December 2012, 4 January 2013, 22 April 2013, 22 July 2013, and 5 November 2013. While the visits were mainly preoccupied with the appellant's psychological condition, the medical records indicate that he did not raise back pain during any of the consultations, two of which were with Dr Kumar.
Dr Campbell's evidence (T1-90) was to the effect that the appellant may have managed in the intervening period with the assistance of over the counter medication and in a context where he was motivated to continue working for financial and related reasons. It was his evidence that people respond differently to the advent of pain and make different choices about the implication of any pain for their employment. He said that the severity of the injury, the motivation to get back to work, the employment status, job security, and financial needs were all factors that influence how long an individual might take off work following an injury.
Dr Campbell rationalised the appellant's capacity to continue working without apparent difficulty in the following way (T1-94):
"Okay. And what about the fact that he saw his local GP on the 10th of November 2012 and didn’t attend again until the 18th of November 2013, which is something like about 11 months?‑‑‑Yes. I think that’s reasonable. If he’s attended upon his local doctor and there’s been a documentation of a lower back injury I don’t – I think once again it’s within the normal range to just accept that you’ve got the injury and get on with things so patients will range in their attendance to a GP following a back complaint. Some will be in there every day obsessed about it. Others are more laid back and just accept they’ve got a lower back pain complaint and get on with things, which is more of a normal response, if I may add, so I would just say that’s within normal limits. I think if he presented to his GP after the injury and didn’t complain of a lower back pain, I mean, that’s different.
All right. So ‑ ‑ ‑?‑‑‑There wouldn’t be a paper trail of a back complaint but if he’s attended and documented the back pain and doesn’t attend for 12 months, I don’t have a problem with that."
For his part Dr Williams accepted that patients respond differently to soft tissue injuries and that while some patients might seek medical attention at regular intervals, others will, having been informed of the medical diagnosis, just get on with life. It was his experience however that patients who suffer a significant injury are not able to persist in heavy manual occupations without some requirement for medical assistance or prescription medication.
While I accept Dr Campbell's evidence that various factors may have induced the appellant to continue working when rest and/or medical treatment may have been more appropriate, the weight of the evidence suggests that the appellant's capacity to work was not impaired by events at work on 6 December 2012.
Medico Legal Reports
Following the lodgement of his notice of claim for damages on 2 February 2015 the appellant was referred to four specialists for independent medical examinations. As a consequence four medico legal reports were prepared, all of which were tendered into the evidence. The appellant first attended on Dr Estensen on 17 February 2015. He subsequently attended on Dr Williams and Dr Chung on 9 March 2015 before attending on Dr Campbell on 18 March 2015.
Lower Back Injury
Dr Williams' report is in the evidence as Exhibit 15. On the history given to him by the appellant, Dr Williams formed the view that the appellant's fall on 6 December 2012 resulted in a musculoligamentous injury to the lumbar spine. It was his evidence that symptoms arising from this injury would be expected to resolve within six to twelve weeks of the event. It was Dr Williams' opinion that the fall on 6 December 2012 did not have any "material effect on his working career beyond three months after the event". He concluded that the appellant's symptoms at the time of examination had no relationship to the fall at work in December 2012.
In noting that a CT examination undertaken on 22 November 2013 revealed "minor age related degenerative change with no evidence of nerve compression", Dr Williams opined that if the appellant's history of chronic lower back pain was correct, any back pain experienced could be attributed to the degenerative condition. In his report Dr Williams stated that "degenerative processes of the lumbar spine tend to cause relapsing and remitting lower back pain over an indefinite time period both in relation to activity and otherwise". In his evidence in the proceedings Dr Williams said that (T3-24):
" … if the history of chronic lower back symptoms is accurate, then it’s more likely that there’s another condition which would be likely to be causal. I notice that one of his general practitioners – or at least one of the reporting radiologists of the CT scan of the lumbar spine noted degenerative lumbar spondylosis, which seems to have been in keeping with his age, and that this could have been causal to his symptoms rather than any specific trauma."
It was Dr Williams' evidence that while bone injuries, which tend to cause structural abnormality of the spine, can be aggravated at some point following the initial trauma, soft tissue injuries once resolved are not susceptible to aggravation. He said that "soft tissue injuries tend to pursue a specific course of resolution, and then to resolve completely" (T3-27):
"Soft tissue injury, by nature, proceed as spontaneous resolution, which is part of the reason for making the designation that they have a soft tissue or musculoligamentous nature because the structural activity of the spine is not altered and the symptoms of the particular event dissipate over a period, usually not exceeding six to 12 weeks."
It followed therefore that, in the opinion of Dr Williams, the muscle strain suffered by the appellant on 6 December 2012 would not have been aggravated in a workplace incident occurring nearly twelve months later.
Dr Campbell's report is in the evidence as Exhibit 16. In his report, Dr Campbell noted that the appellant had sustained an injury to his lower back in a fall at work on 7 December 2012 and that he subsequently aggravated the injury at work on 15 November 2013. He diagnosed an injury of "musculoskeletal injury lumbar spine". He apportioned the majority of the appellant's current impairment to the injury sustained in early December 2012. He also concluded that the appellant's condition had reached maximum medical improvement, that recovery in the future was unlikely, and that the current symptoms and restrictions are likely to persist indefinitely. Dr Campbell stated that the appellant was not working at the time of the examination and that his prospects of returning to work as a farmhand/labourer were poor.
In relying significantly on a history provided by the appellant, Dr Campbell supported the appellant's position that his post-November 2013 symptoms were related to the fall at work in December 2012. Dr Campbell accepted that the appellant was symptom free prior to December 2012; he accepted that a traumatic event occurred on 6 December 2012; and he accepted that while the appellant experienced ongoing pain as a consequence of the 6 December 2012 incident, the appellant would have been able to cope and continue working normally in the intervening period by relying on over the counter pain relief. He gave the following evidence (T1-91):
"Well, obviously I had a differing opinion so I would think that if you look at the evidence Mr Goulding was well prior to that first work accident and he had some minor back complaints many years ago but he was essentially well and working and holding down a job prior to that first accident. Then he had the injury. He developed a sudden onset of back pain so there’s a direct causal link there so – and he’s had ongoing symptoms thereafter so I would say that he has ongoing symptoms as a result of that first work accident and to a lesser degree the second work accident."
While Dr Campbell accepted that any pre-existing condition was not significant, he did attribute 20 per cent of the appellant's overall impairment to the pre-existing pathology. In arriving at this conclusion Dr Campbell did not distinguish between pre-existing factors such as a car accident or a fall at school or the degenerative changes revealed in the CT scan taken on 22 November 2013. While he noted the presence of a degenerative condition in his report, he did not discuss the consequences, if any, of the degeneration for the appellant's current condition either in his evidence or in his report.
Psychological Injury
The appellant maintained that he suffered a psychological injury secondary to the physical injury sustained on 6 December 2012. His evidence in support of his claim was brief and inexact. While he had been treated for mental illness for many years, he said that his mental health symptoms changed for the worse after his back injury. He said that he did not have the drive and the "get up" that he used to have and that he was now prone to "throw the towel in" a lot quicker than he would have done in the past. The appellant however did not give specific evidence about the onset of his psychological symptoms nor did he adequately describe how this condition could be causally linked to the 6 December 2012 workplace incident.
The appellant said that since his back injury he had been treated by a number of health professionals for his mental health symptoms. He had been assisted by a support person, Russell Mills, a psychiatrist, Dr West, a registered nurse, Janine Brown, and by the organisations Epic Employment and The Purple Door. No evidence was adduced pertaining to his relationship with Russell Mills, Epic Employment or the Purple Door, however the contemporaneous medical records of the Mundubbera Medical Centre (Exhibit 7) and the Gayndah Mental Heath Service (Exhibit 9) were tendered into the evidence.
The records of the Mundubbera Medical Centre (Exhibit 7) disclose that the appellant had been treated for depression since at least 2010. In terms of consultations proximate to the fall at work it is noted that on 4 May 2012 the appellant reported a "mood disorder" to his general practitioner and was treated with Cipramil and Tegretol. Dr Estensen's report notes that the dose of anti-depressant medication was increased in October 2012. On 17 December 2012 the appellant attended on his general practitioner for a depressive illness and complained that Cipramil and Tegretol were causing itchiness and that he had stopped and restarted his medications several times to try to remedy the problem. There is nothing in the record that connects his reason for attending on the doctor with an incident at work on 6 December 2012. On 4 January 2013 the appellant attended on the medical centre again because of an "exacerbation of mood swings post cessation of tegretol and cipramil" and is given an urgent referral to the Gayndah Mental Health Services.
The records of the Gayndah Mental Health Services include a seven page Consumer Assessment form completed on 10 January 2013 by registered nurse, Janine Brown. The form sets out the circumstances associated with the appellant's referral to the service. The form does not include any mention of an injury at work in December 2012 nor does it attribute the appellant's psychiatric condition to anything associated with his employment. The reason for referral was stated to relate to the changes in medication and the appellant's severe mood swings. The form also identified the presenting issue as that arising from the appellant's attendance on his general practitioner on 17 December 2012. An entry in this regard stated that a range of antihistamines had been used intermittently to remedy the extreme itchiness "with some unwanted sedation experienced where he was 'falling asleep at work'". It was noted that an appointment had been arranged with Dr West on 24 January 2013.
The progress notes of this appointment and a letter from Dr West to Dr Kumar dated 4 February 2013 are included in Exhibit 9. Neither the progress notes nor the correspondence include any mention of employment related stressors. In his letter Dr West indicated that he had diagnosed the appellant with major depression. The appellant was unable to attend a follow-up appointment with Dr West on 28 February 2013 because of flooding in the region. There were no subsequent attendances by the appellant in connection with the matter and his file was closed on 26 June 2013. In completing the discharge summary Janine Brown's notes include the following:
"Jeffery has good support from his wife and his family, and tends to just get on with things when he is settled. It is apparent with this end of episode summary that this is what Jeffrey has done as Clinician has been unable to make contact with him and his wife. There has been not response or follow through from Jeffrey in making contact with CM when asked. Hence the decision to close this episode."
The Mundubbera Medical Centre records show that the appellant attended on a general practitioner in relation to depression on 22 April 2013 and 22 July 2013, but these attendances may primarily have been for the renewal of prescriptions. There was no other visit to a general practitioner for depression prior to the second workplace incident in November 2013.
Dr Estensen's report (Exhibit 17) includes a history which bears only limited resemblance to the true facts. The history given to Dr Estensen was that after injuring himself at work in early December 2012 the appellant took a few days off work. He resumed work for a couple of weeks but had to stop work because of pain. His employer sent him on holidays but six weeks after he resumed work he was retrenched. At page 6 of his report Dr Estensen wrote in effect that the appellant considered that his mood deteriorated when it became apparent that his back condition was not resolving, a circumstance which "became prominent in the second half of 2013". He experienced a further decline after being retrenched by his employer.
Dr Estensen diagnosed an adjustment disorder with mixed anxiety and depressed mood and said that this condition was causally related to the appellant's lumbar spine condition. He concluded that "pain, physical impairment and an inability to work in his usual manner" has led to the onset of his depression. This conclusion however does not connect with sufficient precision the appellant's psychological condition and an injury at work on 6 December 2012. There was no evidence of any physical impairment or inability to work in the usual manner after the 6 December 2012 incident.
Consistent with the medical records, Dr Estensen's report stated that the appellant had a "period of depressed mood, irritability and angry outbursts" in late 2012 and early 2013 which was attributable to a change of medications necessitated by itchiness. With the recommencement of alternate medication the appellant's mood improved and his irritability diminished. It is in this context that the appellant told Dr Estensen that he felt that there was "a deterioration in his mood as it became apparent his back condition was not resolving" a condition that "became prominent in the second half of 2013".
These circumstances in my view provide only a tenuous link between the appellant's psychological condition and the 6 December 2012 incident at work. This difficulty is addressed by Dr Estensen in his report by opining that the "onset of Mr Goulding's incident related Adjustment Disorder was not immediate" and that the appellant's mood declined "across the second half of 2013 and early 2014 as it became apparent that his orthopaedic condition was not resolving and that pain management was the recommended treatment option". I am not aware however of any medical evidence that placed outcomes such as an "orthopaedic condition not resolving" or that "pain management was the recommended treatment option" in the period preceding 14 November 2013.
It is also relevant that a collateral history provided by the appellant's wife and included in the report, explained the appellant's changed psychological state by reference to a change in supervisor (owner), a loss of overtime, and "not working", all being factors which are most likely to be relevant only to the events occurring after 14 November 2013.
Having regard to the relevant facts and circumstances, I am not satisfied that there is a sufficient factual basis to support the conclusion arrived at by Dr Estensen in his report. However in the proceedings Dr Estensen was given the opportunity to revise his opinions based on a correct history. In this regard Dr Estensen proceeded on the basis that the delivery by the appellant of a truncated history, in which events occurring over an eighteen month period were condensed into a period of a few months, did not materially alter his understanding of events and did not cause a change in opinion. In his evidence Dr Estensen altered the chronology by saying that the appellant's mood decline in 2013 occurred not in the second part of the year but "the last part of 2013 and in early – 2014" which meant that the mood decline coincided with the November 2013 injury. The difficulty for Dr Estensen is that if the mood decline is shifted back to November 2013 and beyond, there is very little, if any, basis for the assertion that the psychological condition was causally connected with the incident at work on 6 December 2012. The matter was directly canvassed with him in cross-examination when it was put to him that "the second incident was the cause of any aggravation" of the appellant's psychiatric injury. In response Dr Estensen said in effect that the problems caused by the change in medications were resolved in June 2013 and that the "second incident seemed to prompt further pain and physical impairment" and that the appellant's mood changed after that.
It is reasonably clear to me that Dr Estensen's evidence does not support grant of the appeal in so far as the psychological injury is concerned. His report is of no assistance because the extensive errors in the history relied on to support its conclusions, while his evidence in the proceedings does not support a balance of probabilities finding that the psychological injury is related to the incident at work in December 2012.
Dr Chung's report is in the evidence as Exhibit 14. Dr Chung concluded that the appellant had not suffered a psychological injury as a result of a lower back injury. It was relevant to the formation of Dr Chung's opinion that the appellant was able to continue working after the incident of 6 December 2012. Other considerations were relevant to his conclusion that any fall at work on 6 December 2012 did not make a significant contribution to the appellant's psychological injury (T3-13):
"‑‑‑Well, I – I think that the – from – from what I have assessed is Jeff’s – Goulding is that his condition had been chronic. It’s been going for a long time. And – and the presentation doesn’t seem to have changed much pre- and post-injury. So this – my – my impression at this point was that even if the injury was significant and had contributed to his mental state, I think it would not have been to the extent where it would’ve changed his trajectory very much. That, I think, was what I was – what I was thinking at the time."
Dr Chung concluded that the psychological symptoms reported by the appellant were "mostly associated with a pre-existing condition, namely an undiagnosed bipolar affective disorder and untreated ADHD". Dr Chung said that around 60 per cent of persons suffering from ADHD in childhood will continue to suffer from the condition throughout their adult life.
Conclusion
While the appellant may have experienced some level of back pain over time, his failure to report back pain to a medical practitioner between 2010 and December 2012 is consistent with a view that the appellant was able to manage any back pain experienced, and any such back pain did not significantly interfere with the exigencies of daily life, including his work. Notwithstanding this, a CT examination on 22 November 2012 revealed a degenerative condition which may have been a contributing factor to back pain at some point in time.
While the appellant may have suffered a fall at work on 6 December 2012 and may have told a co-worker about the fall, it was more likely than not that the fall did not cause significant harm. The severity of any incident at work on 6 December 2012 and the consequences of the incident were diminished by the appellant's response to the event. He was not incapacitated and he continued working after the incident. In contrast to the November 2013 event, there was no implication for employment. The incident was not reported to, or discussed with, his employer, it did not cause any redeployment to light duties, and the employer did not need to direct the appellant to take time off work.
On the medical records, the incident was not significant enough to warrant the appellant informing Dr Kumar on 10 December 2012 about the matter. It is difficult to accept that Dr Kumar would include in his record of consultation a reference to chronic back pain and yet exclude from the record any information about a traumatic event occurring only a few days earlier. Further, to the extent that it can be discerned from the records, Dr Kumar's response to the appellant's complaint of back pain appeared more consistent with a diagnosis of a minor problem or a long standing condition that was able to be managed, rather than the effects of a very recent traumatic event. Significantly, the consultation did not result in any treatment of the back pain and the evidence supports a conclusion that very little changed as a result of the fall at work. The appellant's circumstances were not rendered different in any significant way by the incident at work on 6 December 2012.
While Dr Kumar's notes do not include any diagnosis of the cause of back pain, the appellant's evidence and the history recorded by the medical specialists indicate that Dr Kumar diagnosed the cause of the low back pain as "muscle strain". On Dr Williams' evidence, which I accept, a muscle strain would have resolved within three months of the onset of symptoms. It was also his evidence that soft tissue injuries, once resolved, are not susceptible to aggravation. Consequently the injury reported on 18 November 2013 would not have involved an aggravation of the muscle strain diagnosed by Dr Kumar on 6 December 2012. The medical evidence therefore supports a balance of probabilities finding that the back injury investigated by Dr Rafeeq on 18 November 2013 was not associated with any pain reported to Dr Kumar on 6 December 2012.
While the medical notes of the consultation with Dr Rafeeq on 18 November 2013 support the appellant's case, they are not determinative. In the first instance the notes reflect what the appellant told the doctor and are not of themselves proof that the appellant seriously or significantly injured himself at work on 6 December 2012. Further, the entry about a fall at work is not contemporaneously made and is not consistent with the contemporaneous medical record of 10 December 2012. Finally the notes complicate the issue of causation by including an entry about long standing back pain. The complication is increased by the result of the CT examination on 22 November 2013 showing degeneration, and the evidence in the proceedings about a car accident and a fall at school.
In terms of the competing specialists' opinions, the opinion of Dr Williams is more consistent with the factual circumstances of the appeal and is preferred to the evidence of Dr Campbell. Dr Campbell's opinion was also more reliant on the appellant's history in circumstances where the evidence establishes that the appellant was not a reliable historian. Further, if the appellant did sustain a soft tissue injury on 6 December 2012, then Dr Williams' largely uncontested evidence was to the effect that this injury would have resolved well before mid-November 2013 and would not have been aggravated by the second workplace incident. As a matter of probability I also prefer Dr Williams' evidence to the effect that in the case of a specific traumatic event, symptoms could usually be expected to arise at the time of the event or soon thereafter. In this regard Dr Williams' opined that it would be unlikely that "symptoms requiring investigation approximately 12 months after the incident" would be regarded as causal.
The pattern of long term work uninterrupted by injury between 6 December 2012 and 18 November 2013, the proximity of the second incident to the range of medical consultations, the redeployment to alternative duties, and the incapacity for work, are all factors contributing to a finding that it was more likely than not that the appellant's current condition was associated with the November 2013 incident and not the December 2012 incident. This factual context and Dr Williams' evidence makes it difficult to accept the appellant's position that the injury in November 2013 was to be treated as the minor of the two incidents and should be considered to be an aggravation of the 6 December 2012 injury, which was to be regarded as the major event.
On all the evidence, I am unable to accept that the fall at work on 6 December 2012 can be held to be the determinative development in the appellant's medical history relevant to the appeal. In basic terms, neither the appellant's physical or psychological circumstances were materially altered by the events of 6 December 2012.
In my view the appellant's current injury, that is the injury reported to Dr Rafeeq on 18 November 2013, is not related to the incident at work on 6 December 2012. Nor is the appellant's psychological condition related to this incident. The necessary association between the employment and the appellant's current injuries has not been made out in the appeal. The appeal is dismissed and the decision of the regulator dated 30 July 2015 is confirmed. The matter of costs is reserved.
I order accordingly.
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