Judd v Simon Blackwood (Workers' Compensation Regulator
[2014] QIRC 92
•27 May 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Judd | v | Simon | Blackwood | (Workers' |
Compensation Regulator [2014] QIRC 092
| PARTIES: | Judd, Donna | ||||
| (Appellant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (Respondent) | |||||
| CASE NO: | WC/2012/50 | ||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||
| (Workers' Compensation Regulator) | |||||
| DELIVERED ON: | 27 May 2014 | ||||
| HEARING DATES: | 1 and 2 April 2014 | ||||
| MEMBER: | Industrial Commissioner Thompson | ||||
| ORDERS : |
|
confirmed.
3. The Appellant is to pay Respondent's
costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission.
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant a worker - bears onus of proof - standard of proof - balance of probabilities - medical evidence - failed to establish personal injury in accordance with s 32 of the Act - Appeal dismissed - claim not one for acceptance - decision of Regulator confirmed - Appellant to pay Regulator's costs. |
| CASES: | Workers' Compensation and Rehabilitation Act |
| 2003 s 11, s 32(1), s 550 | |
| APPEARANCES: | Mr J. Dwyer, Counsel instructed by Sciacca's |
| Lawyers and Consultants for the Appellant. | |
| Mr C. Clark, Counsel directly instructed by Simon Blackwood (Workers' Compensation | |
| Regulator), the Respondent. | |
| Decision |
[1] On 14 February 2012 Donna Judd (the Appellant) lodged 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 23 January 2012. Since the filing of the Appeal, a number of amendments have been made to the Act which include the Respondent to the Appeal being abolished and from 29 October 2013, the new name replacing Q-COMP is that of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) who, in turn, becomes the Respondent to the Appeal.
[2] The decision of the Regulator was to confirm the decision of the Insurer to reject the Appellant's Application for Compensation in accordance with s 32 of the Act.
Relevant Legislation
[3] The Legislation pertinent to this Appeal is 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."
Nature of Appeal
[4] 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
[5] The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
[6] In the course of the proceedings, evidence was provided by eight witnesses.
[7] 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
[8] The witnesses for the Appellant were as follows:
Appellant (Judd); Tiffany Marshall (Marshall); Dr Julie Linstrom (Dr Linstrom); Dr Susan Matthysen (Dr Matthysen); and Dr Scott Campbell (Dr Campbell). [9] The witnesses for the Regulator were as follows:
Jenny Gabriel (Gabriel); Vanessa Heath (Heath); and Dr Sarah Watts (Dr Watts). Appellant
Judd
[10] Judd, a former employee of Coles at the Beenleigh Store, held the position of 2IC Service Assistant in June 2011. In the months prior to June 2011 she had received "physio" and pain relief for a shoulder/neck injury which had resulted in her being put on light duties. In June 2011 she underwent In Vitro Fertilisation (IVF) which occupied a three week period and included a consultation on 20 June 2011 with Dr Linstrom.
[11] On 21 June 2011 she commenced work at around 8.30 am on the registers and a short time after, whilst serving a customer, she experienced "excruciating pain all of a sudden" across her lower back. The tasks being undertaken at the time included:
serving customers; packing groceries into shopping bags; and lifting groceries up for customers to pick up.
[12] She immediately ceased work, contacted the Service Desk and walked down to the locker room. Whilst in the locker room, Marshall entered the room at which time Judd informed her of what had happened and Marshall offered to take her to the doctors. Judd recalled that Heath was present at the time, although she did not enter the locker room and there was no conversation between the two. She was driven to her General Practitioner (GP), Dr Matthysen, where she recalled informing her of "severe back pain" but could not recall telling her she had pain in her left side or having "severe pain since yesterday in left groin". Her evidence was she had no recall of experiencing severe pain in the left groin area the previous day.
[13] Judd had time off work (unable to recall how much) and lodged a claim for worker's compensation in September 2011 which was not proximate to the date of injury because she had not been back to work.
[14] Under cross-examination, Judd conceded that on 3 November 2011, following the rejection of her claim for worker's compensation, she saw Dr Campbell However when questioned on the history recorded by Dr Campbell she could not recall "exactly" what she told him. The records included the following extracts from his report:
"Ms Donna Judd stated she was involved in a work accident on 21 June 2011. At the time, she was standing at a cashier for a 60 minute period and leaning forward";
"…twisting and pulling to move items across a counter in her capacity as a cashier at a supermarket"; and "…Whilst performing her duties she noticed the onset of increasing lower back pain which was severe in nature". [Transcript p. 1-12]
[15] Judd conceded the history given to Dr Campbell differed from her evidence-in-chief regarding the onset of pain [Transcript p. 1-12].
[16] Judd could not recall having been certified unfit for work 14 to 17 June 2011 in relation to having suffered bleeding as a consequence of the IVF treatment but did recall having a "planned unpaid sick leave day" on 20 June 2011 [Transcript p. 1- 15]. Judd could not recall seeing Heath in the locker room on 21 June 2011, nor that she was seen to be clutching her hip area. She stated that she did not have a conversation with Heath [Transcript p. 1-15].
[17] Judd was questioned regarding the GP's consultation on 21 June 2011 which recorded:
"Consultation Note: Severe pain in left side spreading to back"; and "Severe pain - since yesterday in left groin area".
[18] Judd could not recall telling the GP the above information [Transcript p. 1-17]. Judd accepted she had been sent for an ultrasound by the GP (that morning) and later that day she again visited her GP but took issue with the GP's notes which stated "USS clear but still report of pain in groin" [Transcript p. 1-18].
[19] Judd was taken to a number of notations in the GP records where it was recorded that a number of previous conditions or injuries were work-related and then questioned on the failure to mention a connection with work for the first three consultations following the 21 June 2011 event [Transcript p. 1-20]. Judd acknowledged she was no stranger to the worker's compensation system and in the period between 21 June and 2 September 2011 she had expended monies for medical expenses whilst being aware that such expenses had previously met with regards to her other claims [Transcript p. 1-21].
[20] Judd was required to demonstrate how she was sitting on the chair in the locker room indicating that she was crying due to the level of pain she was experiencing [Transcript p. 1-25]. Judd had no recall of a discussion in or around 2 September 2011 with Dr Matthysen regarding her visit to an Orthopaedic Surgeon who had found her fit to return to full-time work duties [Transcript p. 1-26]. Judd was unable to recall numerous discussions with Gabriel at various times when handing in her doctor's certificates from 30 June 2011 onwards [Transcript p. 1-28]. Judd was further unable to recall informing Dr Watts (on 16 September 2011) that she did not recall a particular injury or accident related to the onset of her back pain or that she had previously suffered from stomach and back pain. Judd accepted that what Dr Watts had recorded about her injury was the complete opposite to her evidence in the proceedings [Transcript p. 1-91].
[21] In re-examination, Judd was unable to recall consultations with Dr Matthysen prior to 21 June 2011 or her attendance with Dr Matthysen after the Orthopaedic Surgeon visit in August 2011.
Marshall
[22] Marshall was employed at Coles in Beenleigh in June 2011 and on the morning of 21 June 2011 observed Judd in the locker room crying and leaning over with a sore back. Judd informed her that she had suffered a sore back "from lifting all the heavy stuff through the register" and that she wanted to go to the doctors. She recalled Heath being present at some time but had no recall of any conversation between Heath and Judd with her evidence being that she never left Heath and Judd alone. Marshall drove Judd to the doctors and, after Judd's consultation, drove her home. On her return to work she advised Gabriel that Judd would be calling her.
[23] Under cross-examination when questioned on her ability to clearly recall 21 June 2011 the Marshall replied "that was what I was told". Marshall demonstrated how Judd was presenting in the locker room on 21 June 2011 indicating she had her hands behind her back, holding her back in agony [Transcript p. 1-38]. She acknowledged that when Heath arrived at the locker room she was able to see Judd but could not recall any conversation between the two [Transcript p. 1-39]. She further testified that Judd was leaning forward but did not have her hands or arms on her leg [Transcript p. 1-40]. Marshall accepted the proposition that she was friends with Judd but could not recall if they had spoken about this day [Transcript p. 1-41].
Dr Linstrom
[24] Dr Linstrom, a practising Gynaecologist, gave evidence that Judd was her patient in June 2011 having undergone IVF treatment. She had a face-to-face consultation with Judd on 20 June 2011 for a "debriefing follow-up appointment" and did not recall Judd complaining of pain or discomfort on that day and had no written documentation confirming the same. From a clinical perspective, any complaint about pain or discomfort would have usually been recorded in her notes.
[25] Under cross-examination Dr Linstrom was taken to an email she authored on 18 June 2013 [Exhibit 3] which stated:
"I can confirm that I spoke to Ms Judd by telephone on 20 June 2011. My records from this date do not indicate that Ms Judd mentioned that she was experiencing back pain."
[26] Dr Linstrom gave evidence she had seen her in person on 20 June 2011 and she had made a mistake when completing her progress notes [Exhibit 4], entering the information in the wrong spot [Transcript p. 1-48]. Dr Linstrom was taken to medical notes of Dr Matthysen which referred to a consultation with Judd on 21 June 2011 where the following was recorded:
"Severe pain in left side, spreading to the back. Severe pain since yesterday in left groin. Pain in groin. USS ultrasound clear."
[27] Dr Linstrom had no knowledge whatsoever of these notes [Transcript p. 1-50].
[28] In re-examination, Dr Linstrom was clear that if Judd had complained of significant pain, especially in the groin area, she would have recorded it in her notes and done an ultrasound.
Dr Matthysen
[29] Dr Matthysen, a General Practitioner, prepared a report [Exhibit 6] dated 21 November 2013 in which she stated:
"Mrs Judd was seen by me for the first time on the 21/06/2011 complaining of lower back pain after a work related injury. Her prior records from this surgery do not indicate any similar complaints to indicate a pre-existing condition. In my opinion working at that stage was a significant contributing factor to that injury."
[30] In her clinical notes of 21 June 2011 Dr Matthysen had recorded that Judd had "severe pain in left side, spreading to back" with her evidence-in-chief being that on 21 June 2011 "it was more into the back and lower abdominal into groin, more on the side, on her left side, and spreading to the back and into the groin". When the ultrasound came back later that day in the absence of any finding she medically assumed that it was the back rather than in the groin area with the pain router from the back.
[31] On 21 June 2011 Dr Matthysen had ordered the ultrasound for purpose of excluding an ectopic pregnancy as a consequence of her IVF treatment. Dr Matthysen recalled that Judd had informed her the pain had started on the previous day.
[32] Under cross-examination, Dr Matthysen conceded her clinical notes made reference to the back injury suffered by Judd having occurred at work the previous day [Transcript p. 1-57]. Dr Matthysen confirmed the complaint by Judd on 21 June 2011 was "severe pain in the left side spreading to the back" and that the report of 21 November 2013 "was written after all the evidence; that came after the investigations" [Transcript p. 1-58]. On her referral letter to Dr Williams (Orthopaedic Surgeon) dated 30 June 11 [Exhibit 8], Dr Matthysen acknowledged she had written:
"Thank you very much for seeing Donna with lower back pain which gradually go worse over about two days and is now constant for about three weeks, causing her to have an abnormal gait. She has seen a physiotherapist and is not improving, and they are not keen to continue treatment. For opinion, please."
[33] Dr Matthysen, upon receiving the report from Dr Williams, informed Judd that his opinion was she capable of returning to her employment the next week on full duties, with a reasonable low risk of recurrence of symptoms [Transcript p. 1-60].
[34] Dr Matthysen recalled receiving a facsimile on 28 September 2011 which included a report from Dr Watts an Orthopaedic Surgeon who had opined that Judd's back injury would not entitle her to worker's compensation and of being requested to answer the following two questions [Exhibit 7]:
In your opinion is it likely the disc condition is pre-existing?; and
Do you concur with Dr Watts' opinion regarding the condition and employment in that Donna would have had the symptoms whether she was working or not?
[35] Dr Matthysen answered "yes" to each question and, in evidence, did not resile from her expression of opinion [Transcript p. 1-61].
Dr Campbell
[36] Dr Campbell, a Neurosurgeon, prepared a medico-legal report [Exhibit 12] dated 3 November 2011. The report identified that in a history provided by Judd, the work accident of 21 June 2011 occurred whilst "she was standing at a cashier for a 60 minute period and leaning forward, twisting and pulling to move items across a counter in her capacity as a cashier at a supermarket". Whilst performing those duties "she noticed onset of increasing back pain which was severe in nature".
[37] Specific questions were put to Dr Campbell as part of the process in completing his report, Dr Campbell made the following observations:
"On the balance of probabilities, it is likely Mrs Judd sustained a new injury on 21 June 2011 as this was the date of onset of symptoms. Prior to this date, Mrs Judd was well and there was no prior history of lower back pain to suggest any pre-existing pathology. It is unlikely the IVF treatment had caused a lower back injury, this would be unusual given the history of onset of symptoms whilst performing manual tasks. Yes, Mrs Judd developed sudden onset of lower back pain and stiffness whilst performing her duties as a cashier at work on 21 June 2011 and as such there is a direct causal link."
[38] Dr Campbell accepted a proposition that if the timeframe of 60 minutes on the register was in fact 20 minutes his view would not be altered.
[39] Under cross-examination, Dr Campbell accepted that a small and insignificant disc protrusion identified in clinical investigations did not play a role in any of the symptom reporting and that the disc protrusion was the only objective finding as revealed by those investigations [Transcript p. 2-31].
[40] Dr Campbell's diagnosis of a "chronic soft-tissue muscular ligamentous injury to the lumbar spine" was arrived at with reliance of the history given by Judd. He acknowledged the history given by Judd contained significant differences to the history contained in Dr Watt's report [Transcript p. 2-32]. Dr Campbell's evidence was he had not been informed of Judd suffering back pain prior to the 21 June 2011 incident [Transcript p. 2-33].
Regulator
Heath
[41] Heath worked in a management position at Coles Beenleigh store in June 2011. She kept a work diary from which extracts of numerous dates between 9 June and 21 June 2011 were tendered in the proceedings [Exhibit 10]. The notes confirmed:
Judd after an approved absence returned to work on 10 June 2011 carrying out duties that included express checkouts and supervision. She left on 12 June 2011 on unpaid sick leave having experienced some bleeding; 21 June 2011 Judd started her rostered shift at 8.35 am and left the
premises at 9.20 am; and at 9.00 am on 21 June 2011 Gabriel requested Heath to go to the tea room where she found Judd siting in the locker room clutching her hip area. Judd was sitting on a chair, leaning forward clutching her hip.
[42] Heath could not recall seeing Judd at any time with her hands behind her back clutching her lower back. She asked Judd what was wrong to which Judd was said to reply that "[she] wasn't sure. Maybe it was to do with losing the baby". Judd looked to be in some distress but Heath could not recall her crying. Also present at the time was Marshall who Heath understood later drove Judd to the doctors.
[43] Under cross-examination, Heath conceded she was not present for the entirety of the time Judd was in the locker room on the morning of 21 June 2011 [Transcript p. 2- 7]. All her diary entries were completed on the day in question or the very next day [Transcript p. 2-7]. She did confirm that there were entries that where not contemporaneous and had been added at a later date [Transcript p. 2-8]. Heath disagreed that she had informed Gabriel of Judd reporting to her of "pain from her back to her front" [Transcript p. 2-9].
Gabriel
[44] In June 2011 Gabriel was the Coles Beenleigh Store Manager and, as such, kept a work diary. Extracts from her diary were tendered in the proceedings [Exhibit 11]. The diary entries were made on the day an event occurred or, in some cases, the next day.
[45] Events recorded in the diary extracts included:
"10 June 2011 on her return to work from a neck injury Judd asked to be moved to another department because her shoulder was hurting. Judd advised she had cancelled her "physio" appointments as a result of questioning from Heath about having not attended "physio" in the six weeks she was off work. Judd also informed her that "checkouts" were the reason for her arm hurting;
11 June 2011 Judd asked to put a heat pack on her shoulder as it was
sore; 13 June 2011 Judd rang to inform she would not be in for the rest of the
week due to complications with her pregnancy;
16 June 2011 Judd rang to see if was okay to have Monday off in lieu or TOIL (owed from the Queen's Birthday weekend) as she had lost the baby and had to see a specialist;
21 June 2011 entry identified Judd returning to work and at some stage Gabriel was advised Judd was crying, in pain in the ladies room. Gabriel sent Heath down who later informed her that Judd informed her it may have been something to do with the baby as she was like this yesterday; and
23 June 2011 Judd came to the store with a doctor's certificate covering an absence until 30 June 2011. Judd informed that the doctor suspected she had two slipped discs and she was in much pain."
[46] Judd had made no mention of submitting a workers' compensation claim in the course of her visit to the store. Judd attended the store again on 30 June 2011 producing another doctor's certificate and advising she would need to see a specialist. Judd in response to a question from Gabriel could not recall doing anything to hurt her back. On all occasions when she attended the store to hand in medical certificates there was an opportunity for her to request a workers' compensation claim form.
[47] Under cross-examination, Gabriel could not recall whether Judd was accompanied by her children on the occasions when she brought her medical certificate into the Beenleigh store. Her diary notes were mostly entered on the day or the next day at the latest [Transcript p. 2-15]. Gabriel had no access to the contemporaneous notes taken by Heath on 21 June 2011 [Transcript p. 2-16] but was of the belief her notes reflected what Heath had told her [Transcript p. 2-19]. Gabriel accepted that despite Judd not having initially lodged a claim for workers' compensation there were at least some fundamental ingredients of a notice of a workers' compensation claim [Transcript p. 2-19]. Gabriel conceded that the facts alleged by Judd in her claim were not inconsistent with her expected duties [Transcript p. 2-20]. There was no incident report pertaining to the incident of 21 June 2011 and at 24 June 2011 she had no evidence that Judd had suffered a work-related injury [Transcript p. 2-21]. It was Gabriel's evidence that there was a "heavy look-up item button" on checkout registers so that cashiers do not have to lift products above 10 kilograms in weight [Transcript p. 2-22].
[48] In re-examination, Gabriel indicated that based on information provided by Judd, she had no reason to investigate whether a work-related event had occurred on 21 June 2011 [Transcript p. 2-23].
Dr Watts
[49] Dr Watts, an Orthopaedic Surgeon, conducted an assessment of Judd on 16 September 2011 at the behest of WesSafe Injury Services and subsequently provided a report dated 26 September 2011 [Exhibit 13].
[50] In evidence-in-chief Dr Watts regarding the report she stated:
the history was taken from Judd directly; and medical information included an MRI scan (1 September 2011), CT scan
(23 September 2011).
[51] Dr Watts agreed with the assessment of Dr Campbell that the disc protrusion did not have any role in Judd's presentation and in response to questions she was required to consider provided the following opinions:
"Ms Judd did not have a specific injury. It is likely that the disc condition is pre-existing. It is possible that the disc condition may be incidental, and may not be the cause of the dramatic back pain she experienced on the day. It is also possible that the pain was related to the stomach and back pain already experienced prior to this "attack" or related to IVF side effects or complications. Ms Judd's employment is incidental to condition. I believe that she
would have had the symptoms whether she was working or not; and I am not aware of any connection with lumbar injury, however the IVF treatment process and possible complications is out of my area of expertise".
[52] The report contained a section relating to the history of injury under which Dr Watts recorded the following:
"Ms Judd has been working as a Coles checkout operator. She does not recall a particular injury or accident related to the onset of her back pain. She reports she had previously been suffering from stomach and back pain, and then on 21 June 2011 she went to work and experienced a severe back pain of an intensity she had not experienced before. The pain was 10/10, sharp and constant. It came on over the course of one hour. She was simply standing at the register when the pain came on. There was no movement, cough, strain or precipitate that she could identify. Nothing made it worse or better. The pain was so severe that she had to go home that day. The pain took months to get better.
At the time of the onset of her pain she does recall that she was already suffering from stomach and back pains. It was at the time that she was undergoing IVF cycles."
[53] Under cross-examination, Dr Watts confirmed the history reference to stomach and back pain had been obtained directly from Judd [Transcript p. 2-38]. Dr Watts accepted the back pain experienced on 21 June 2011 could have been something totally different to the stomach and back pain and there could be a clear distinction between the two pain issues however she did not accept the distinction indicated different causations [Transcript p. 2-39]. Dr Watts was adamant she was clear in getting the exact circumstances in terms of an accident, event or strain [Transcript p. 2-39].
[54] The history from Judd did not identify one thing that Judd could relate to the onset of the injury with regards to a physical movement or an activity nor did the history show any particular strain or pain [Transcript p. 2-40]. Dr Watts said she had specifically questioned Judd about her duties on 21 June 2011 and established there was no particular movement, straining event, or strain that had occurred relating to the onset of pain [Transcript p. 2-41]. Dr Watts went on to state:
"It wasn't that she wasn't given an opportunity to do it. There was time spent on this. It was questioned form several angels. It wasn't something that I just let her run away with and not probed her further because this is the most important part of the whole issue." [Transcript p. 2-43]
[55] Dr Watt's acknowledged her reason for saying Judd did not have a specific injury is because of her understanding that there was no precipitating event [Transcript p. 2-44].
Submissions
Appellant
[56] The claim for compensation dates back to 2011 and with the passage of time it has been difficult for all witnesses regarding the accuracy of their memories thus effecting the consistency of events which have at times been compromised. The Commission will be required to distil relevant from irrelevant facts.
[57] The Appellant, who bares the onus of proof, identified the factual evidence before the proceedings as being:
Judd attended for work on 21 June 2011; commenced at 8.35 am; undertook normal duties; and performance of those duties was the event causative of her injury.
[58] There was evidence from Marshall which confirmed Judd was distressed and crying on the morning of 21 June 2011 and whilst Heath did not observe her crying, there was a fairly insignificant difference in the accounts given by the witnesses. Marshall confirmed Judd was bent forward and reporting back pain whilst Heath had recorded in her contemporaneous notes that Judd was "clutching her hip", yet there was no evidence relating to Judd complaining of hip pain. There was conflict in the evidence of Gabriel and Heath around the reporting of the incident by Heath and on the face of that conflict, preference should be given to the consistent account provided by Judd and Marshall.
[59] The evidence overwhelmingly supports a finding that on 21 June 2011 Judd developed a severe back pain whilst operating a checkout and in the absence of any pre-history there would normally be no controversy, however the events of the three weeks preceding the specific onset of pain had led to a discussion about the possible contribution to the symptoms experienced from the IVF process Judd had undergone with the suggestion by Heath that Judd had hypothesised a possible connection between the sudden onset of pain and that medical process. Such a preparedness to hypothesise about the sudden onset of pain was said to be not unusual and should not detract from the merits of her claim. The contemporaneous notes kept by Heath recorded the early part of June 2011 events around Judd's IVF treatment and the time she was required to have off work.
[60] On the medical evidence before the proceedings, the Commission could draw the inference that Dr Matthysen was not a particularly reliable witness in terms of her record taking, recollection of events and her clinical notes that Judd had severe pain "since yesterday" in the left groin area would, on the face, appear to provide some independent corroboration of the account given by Heath. Her notes were said to be particularly sparse and unhelpful. Dr Linstrom was able to provide evidence of Judd attending her rooms on 20 June 2011 and of not reporting any symptoms or pain at that consultation which invites the Commission to conclude the notes of Dr Matthysen were most likely not accurate. The submission acknowledged that there may be criticism of Dr Linstrom's clinical records in that there was some confusion in her clinical notes however this confusion was cleared up in her evidence.
[61] The medical evidence of Dr Campbell and Dr Matthysen supports the requirement of Judd suffering a personal injury arising out of, and in the course of, her employment with the employment being a significant contributing factor. Although limited reliance was placed on Dr Matthysen's evidence for reasons already provided and of a stark inconsistency in her evidence. Further with regards to Dr Matthysen's evidence, it was submitted she was fully cognisant of Judd's medical history around her IVF treatment which prompted her to eliminate the possibility of life threatening conditions such as ruptured or ectopic pregnancy or an ovarian cyst.
[62] The primary medical evidence relied upon was that of Dr Campbell despite some minimal differences contained within the history he obtained from Judd. He diagnosed Judd having a chronic musculigamentous strain and discounted any involvement in the onset of symptoms that could not be attributed to the IVF treatment. On the history provided by Judd to Dr Watts, it was not controversial in the circumstances that she was unable to remember what had been provided in September 2011 but she did report that she suffered a severe back pain of an intensity she had not previously experienced and had consistently reported that all along. Dr Watts, in the course of cross-examination, had been unwilling to consider the alternative proposition about an event activity relating to checkout duties and in the absence of any clear view expressed by Dr Watts the Commission should prefer the evidence of Dr Campbell.
[63] Other matters for consideration included:
Judd and Marshall's friendship, although there was no evidence of
anything improper; and reporting timeline followed by Judd who took time in submitting a claim
for compensation.
[64] It was argued that no adverse finding could be drawn in respect of Judd's timing in terms of lodging her compensation application.
Regulator
[65] The submission firstly challenged a number of points contained in the Appellant's submission which included:
the attempt to disregard Gabriel's evidence regarding her account of a
conversation with Judd on 30 June 2011; the attempt to disprove there was any complaint of pain prior to
21 June 2011; the effort to elevate Dr Linstrom to some exalted status in respect of a
witness of facts; and
the attempt to categorise Dr Matthysen as an erratic witness when her contemporaneous note clearly stated "Severe pain since yesterday in left groin area".
[66] The question was posed as to whether it was "one of those unhappy coincidences" that Judd's disclosure to Dr Matthysen about the pain in her left groin area is also the same as Heath's account.
[67] In terms of the medical evidence, it was not tenable to find that Dr Linstrom provides all the answers in establishing that there could be no complaint of pain and despite the strong criticism regarding the evidence of Dr Watts her evidence should be preferred to that of Dr Campbell's. There was no objective evidence of any injury with all the MRI's, investigations showing it was a disc protrusion which Drs Watts and Campbell agree had nothing to do with this particular claim. Dr Watts had sought to find some causative reason for the pain complained of by Judd and by the time Judd visited Dr Campbell she knew her claim had been rejected due to her failure to establish a relationship with work.
[68] The case was not a complicated one with liability in respect of workers' compensation being established in two steps:
establishing a factual scenario of a workplace event leading to an injury;
and a person of some medical expertise who examines the injured worker and arrives at a conclusion if there is an injury and whether it is work- related.
[69] The medical evidence and the investigations do not establish objectively any workplace injury and Dr Campbell's diagnosis of a musculo-soft tissue ligamentous injury was made totally on the history given to him. The history provided was not asserted right from the outset as would naturally be expected. There was no mention to Heath of a work-related component on 21 June 2011 and on Judd's attendance at the General Practitioner the same day there was no mention of working on the registers and suffering the onset of serious back pain. There was a second visit to the General Practitioner on the afternoon of 21 June 2011 and still no report of back pain.
[70] Contemporaneous notes were kept by Heath and Gabriel which were relied upon in the course of the hearing and to a large measure are also relied upon by the Regulator as opposed to recollections that may have impaired over time.
[71] Judd was well acquainted with the workers' compensation system and had a claims history that bears out that very fact as do medical records that clearly disclose on instances in the past where she has clearly been able to complain to a doctor about an injury and ascribe a work connection to it. In this case she waited until 2 December 2011 to put in a claim for workers' compensation whilst in the period between 21 June 2011 and December 2011 she had visited work on a number of occasions to hand over medical certificates.
[72] Questions were raised in respect of Judd's credibility overall and in particular the history provided to Dr Campbell against the history taken from Dr Watts. There were a number of inconsistences in Judd's evidence and it was the case that the Appellant had failed to meet her onus.
[73] The Regulator foreshadowed there may be a need to reconvene the matter following the release of the decision in respect of costs due to some costs previously thrown away.
Conclusion
[74] On 21 June 2011 Judd was, for the purposes of s 11 of the Act, a "worker" and therefore entitled to submit a claim for workers' compensation for an injury said to have been suffered as a result of a work-related incident.
[75] The matters for determination in terms of this Appeal are:
whether Judd on 21 June 2011 suffered a personal injury; and
if that personal injury was suffered, did it arise out of or in the course of her employment with Coles and if that employment was a significant contributing factor to the injury.
Personal Injury - Medical Evidence
[76] The medical evidence before the Commission was by way of three witnesses called by the Appellant and one on behalf of the Regulator.
[77] Dr Linstrom was Judd's treating Gynaecologist at the time in question and as it turns out had a face-to-face consultation with her on the day prior to 21 June 2011 with her clinical notes taken at the time of that visit making no mention of Judd complaining of pain or discomfort. Further evidence was given that had such a complaint been made it was her usual practice for such a complaint to be recorded in her notes.
[78] There was some confusion about whether the consultation on 20 June 2011 was face-to-face or by telephone and upon hearing Dr Linstrom's evidence, I accept her evidence that the consultation was face-to-face.
[79] In general terms Dr Linstrom's evidence as a consequence of her medical specialty was of limited assistance to the Commission.
[80] Dr Matthysen was the medical practitioner to whom Judd presented to on 21 June 2011 (on two occasions). In a medical report dated 21 November 2013 [Exhibit 6] she stated:
"Mrs Judd was seen by me for the first time on 21/06/2011 complaining of lower back pain after a work related injury. Her prior records from this surgery do not indicate any similar complaints to indicate a pre-existing condition. In my opinion working at that stage was a significant contributing factor to that injury."
[81] Dr Matthysen's clinical notes entered on 21 June 2011 recorded Judd saying that she had "severe pain in the left side" and following an ultrasound of Judd that day (which was ordered for the purposes of excluding an ectopic pregnancy as a consequence of her IVF treatment) which failed to identify any irregularity, Dr Matthysen medically assumed it was back pain rather than the groin area with the pain router from the back. Dr Matthysen recalled (and entered in her clinical notes) that Judd informed her on 21 June 2011 the pain had started the previous day.
[82] Dr Matthysen's evidence included her recall of receiving a facsimile on 25 September 2013 which included a report from Dr Watts who had opined that Judd's back injury would not entitle her to workers' compensation and of responding positively to the following two questions:
"In your opinion is it likely the disc condition is pre-existing?; and Do you concur with Dr Watts' opinion regarding the condition and employment in that Donna would have had the symptoms whether she was working or not?"
[83] In the proceedings Dr Matthysen continued to hold those views.
[84] It would appear that a discrepancy exists between the content of the medical report of Dr Matthysen (13 November 2013) and her contemporaneous notes of 21 June 2011 and despite submissions on behalf of Judd that Dr Matthysen was not a particularly reliable witness, in terms of her record taking and recollection of events, I am inclined to be swayed towards those contemporaneous notes as opposed to her later recall, thus it is probable that Judd did not on either of her attendances with Dr Matthysen on 21 June 2011 identify an issue of back pain arising from a work- related matter and further there is every likelihood that Dr Matthysen was informed by Judd the pain had started the previous day. Further the factual evidence is that Dr Matthysen, the first medical practitioner to see Judd had the benefit of examining her within an hour or so of the alleged event said to have caused the injury to her back and to receive a history from Judd contemporaneously to that event where it must be noted the initial medical investigation ordered by Dr Matthysen did in no way address a complaint of a lower back injury.
[85] In terms of Dr Matthysen's agreement with Dr Watts findings of a likely pre-existing disc condition and that the symptoms would have been evident whether she was working or otherwise I place little emphasis on this evidence beyond that of Dr Matthysen deferring to an eminently more qualified person.
[86] Dr Campbell made the observations that it was likely Judd sustained a new injury on 21 June 2011 and there was a direct causal link between her duties as a cashier on that day however in the course of being cross-examined he accepted that the small and insignificant disc protrusion identified in clinical investigations did not play a role in any of the symptom reporting and further that the disc protrusion was the only objective finding revealed in those investigations and further conceded that his diagnosis of a "chronic soft-tissue muscular ligamentous injury to the lumber spine" had been arrived at with relevance to the history given by Judd.
[87] Dr Watts conducted an assessment of Judd in September 2011 (some two months prior to Dr Campbell) and found that Judd did not have a specific injury with it being likely that her disc condition was pre-existing and it may have been possible that the disc condition may not have been the cause of the dramatic back pain she experienced on the day.
[88] Dr Watts gave evidence of specifically questioning Judd about her duties of 21 June 2011 which she said established there was no particular movement, straining event or strain that had occurred which related to the onset of pain and this formed the basis of her understanding there was no precipitating event. One must conclude from the evidence before the proceedings that Dr Watts was most forthright in her undertaking of gaining a history from Judd in respect of the onset of pain and the conclusion subsequently reached by her was based upon a solid understanding of the event alleged to have caused the injury.
[89] The medical evidence in its totality, in my view, failed to establish to the requisite standard of proof that Judd suffered a personal injury on 21 June 2011 whilst undertaking her work duties that would allow for such an injury to be compensatable in accordance with s 32 of the Act.
[90] In accepting the evidence of Dr Matthysen, in particular relating to her consultations with Judd on 21 June 2011, it is evident there was no version of a work-related event given by Judd to the doctor having occurred on that day as being causative of her medical condition which is telling when Judd's previous history in terms of identifying work-related events to medical practitioners in respect of other claims for workers' compensation is considered. The contemporaneous clinical notes of Dr Matthysen for the consultation with Judd at 9.50 am on 21 June 2011 recorded that Judd had "severe pain since yesterday in the left groin area" which clearly allows for a finding that the injury complained of by Judd at the consultation with Dr Matthysen had its origins on 20 June 2011, a day which Judd had not presented for work with Coles in her role as a cashier.
[91] Dr Watts's evidence of Judd's injury not being caused by a precipitating work event on 21 June 2011 is preferred to that of Dr Campbell based upon a more thorough focus on history taking from Judd at a time when she was unaware her claim for compensation had been rejected. In the case of Dr Campbell, he accepted on the face, the version of history provided by Judd which was different in certain key aspects than the earlier history provided to Dr Watts and his reliance upon that history to reach his diagnosis of a "chronic soft-tissue muscular ligamentous injury to the lumbar spine" suffers for that reason.
Finding
[92] On consideration of the evidence, material and submissions before the proceedings, I find that:
Judd was, at all relevant times, a "worker" pursuant to s 11 of the Act;
the medical evidence of Dr Matthysen through her clinical notes identified that Judd had on 21 June 2011 provided a history of her (then) complaint which was "severe pain since yesterday in the left groin area" which effectively had the onset of her condition commencing on 20 June 2011, a day on which Judd had not attended the workplace;
Judd failed to establish on the balance of probabilities that she suffered a personal injury in accordance with s 32(1) of the Act on 21 June 2011 whilst undertaking duties as a checkout operator/cashier at the Coles Beenleigh store; and
the requirement to determine whether a personal injury arose out of or in the course of employment and if that employment had been a significant contributing factor in the injury is negated as a consequence of the finding that Judd did not suffer a personal injury in accordance with s 32 of the Act.
[93] The Appeal is dismissed and the decision of Simon Blackwood (Workers' Compensation Regulator) of 23 January 2012 is confirmed. The claim is not one for acceptance.
[94] The Appellant is to pay the Regulator's costs of and incidental to this Appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.
[95] I order accordingly.
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