Parks v Workers' Compensation Regulator - [2018] QIRC 147

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Parks v Workers' Compensation Regulator [2018] QIRC 147
PARTIES:	Parks, Norma (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2016/151
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:	30 November 2018
HEARING DATES:	17, 18 and 19 April 2018 1 June 2018 (written submissions of Respondent) 12 July 2018 (written submissions of Appellant) 18 July 2018 (written submissions in reply of Respondent)
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Knight
ORDERS:	1. The appeal is dismissed in respect of the claim for both psychological or psychiatric disorders. 2. The decision of the Respondent dated 28 June 2016 is affirmed. 3. The Appellant is to pay the Respondent's costs of and incidental to this appeal.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION – Whether the appellant's pain and/or adjustment disorder is secondary to an accepted physical injury – questions around multi-factorial causation – association with employment in contention – whether pain and disability arising from a workplace injury were the major significant contributing factor to the onset of appellant's pain and/or adjustment disorder - whether injury removed from s 32(1) by virtue of the operation of s 32(5).
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 32(1), s 32(5)(c), s 550.
APPEARANCES:	Mr G Carter, Counsel, instructed by Kare Lawyers, for the Appellant. Mr S Gray, Counsel, directly instructed by the Workers' Compensation Regulator, the Respondent.

Decision

Ms Norma Parks ("the Appellant") appeals a decision of the Workers' Compensation Regulator ("the Respondent") dated 28 June 2016, in which it confirmed an earlier decision of Teys Self Insurance ("the self-insurer") to reject Ms Parks' application for compensation under s 32 of the Workers Compensation and Rehabilitation Act 2003 ("the Act)" in respect of a psychological injury claimed to have developed as a secondary injury subsequent to an accepted lower back injury. The appeal is made under s 550 of the Act.

Witnesses

For the Appellant:

·        Ms Norma Parks, previously a carton meat assessor for Teys Australia Biloela Pty Ltd ("Teys")
·        Dr Matthew Keys, Specialist Intensivist, Pain Management
·        Dr Peter Rofe, Consultant Psychiatrist
·        Dr Colleen Hendry, Consultant Psychiatrist

For the Respondent:

·        Mr Jamie Chapman, HR Manager, Teys Australia
·        Mr Bruce Munro – Health and Safety Manager, Teys Australia
·        Dr Baker, Neurosurgeon
·        Dr Gomez, Orthopaedic Surgeon
·        Dr Chalk, Consultant Psychiatrist

History of Ms Parks' claim

Ms Parks was employed as a Carton Meat Assessor with Teys. Her role involved packing and inspecting large chunks of meat (primals) in boxes, which would then be sent overseas.
On 23 October 2014, Ms Parks lodged an application for compensation with the self-insurer for a lower back injury which was sustained on 14 October 2014. A claims officer for the self-insurer, Mr Russell Schott, wrote to Ms Parks on 24 October 2014 accepting the claim for compensation and characterising the nominated injury as an 'episode of a soft tissue injury' for the period 17 October to 7 November 2014.[1]
[1] Exhibit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Parks v Workers' Compensation Regulator

Details

AGLC: Parks v Workers' Compensation Regulator [2018] QIRC 147
Case: [2018] QIRC 147
Decision Date: 30 November 2018

CaseChat Overview and Summary

In the case of Parks v Workers' Compensation Regulator, the appellant, Ms Parks, appealed against a decision regarding her claim for compensation under the Workers' Compensation Act 1987 (Qld) in respect of a psychiatric injury, specifically an adjustment disorder and a pain disorder. The primary issue before the court was whether Ms Parks' pain and/or adjustment disorder was secondary to an accepted physical injury, specifically a strain injury to her lower back. This involved considerations around multi-factorial causation and the association of the psychiatric injury with her employment.

The court examined the medical evidence, particularly the opinions of Dr Baker, Dr Gomez, and Dr Hendry. Dr Baker and Dr Gomez both diagnosed Ms Parks with a musculoligamentous strain of the lower back. Dr Baker opined that by mid-February 2015, the work-related injury was no longer contributing to her incapacity. Dr Hendry assessed Ms Parks and concluded that her reaction to her physical injury may be explained by underlying personality traits, which made her more predisposed to the development of an adjustment disorder. The court considered the timing of the onset of Ms Parks' psychiatric conditions and whether her work and/or non-work stressors contributed to their development.

The court found that while Ms Parks sustained a physical injury in the workplace, there was insufficient evidence to link her psychiatric disorders directly to the workplace injury. The court emphasised the importance of a clear causal link between the workplace injury and the psychiatric conditions to establish compensability under the Act. The court ultimately dismissed Ms Parks' appeal, affirming the decision of the Workers' Compensation Regulator dated 28 June 2016. The appellant was ordered to pay the respondent's costs of and incidental to the appeal.

Orders

Orders of the court

1. The appeal is dismissed in respect of the claim for both psychological or psychiatric disorders.

2. The decision of the Respondent dated 28 June 2016 is affirmed.

3. The Appellant is to pay the Respondent's costs of and incidental to this appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In respect of the nature of Ms Parks' injury, Dr Baker's opinion was also that she had suffered a strain injury to the lumbar spine. In response to a question from the self-insurer in respect of Ms Parks' incapacity for work and the duration of the incapacity, Dr Baker advised:Ms Parks at present has an ongoing incapacity for work. By mid-February, it will be four months since the work injury. I would have expected improvement to have occurred and ongoing symptoms minimal. Unfortunately with Ms Parks she has ongoing incapacitating symptoms with evidence of abnormal illness behavior. By the middle of February and most certainly by the conclusion of February, I would be of the opinion that the work related injury is no longer contributing to the incapacity. (my emphasis) In the same report,[33] Dr Baker expressed the view that Ms Parks did not require any further treatment in respect of the work-related lower back injury and that he concurred with Dr Gomez's opinion in relation to his prior assessment of Ms Parks' presentation. [33] Exhibit 19. In his oral evidence to the Commission, Dr Baker explained that his clinical examination of Ms Parks and the symptoms she was exhibiting were inconsistent with neurological symptoms. In response to questions about his view that Ms Parks was exhibiting abnormal illness behaviours, Dr Baker explained Ms Parks took a long time to respond to any instruction during his examination and then performed any manoeuvre he requested very slowly. Dr Baker was of the opinion that abnormal illness behaviour is not treatable, but that orthopaedic surgeons were well versed in observing and identifying the behaviour.[34][34] T2-45. By way of example, he noted that during his examination of Ms Parks, minimal spinal movement appeared to be causing pain out of proportion with what one would have expected where there were no objective findings. Under cross-examination, he noted that abnormal illness behavior could be interpreted as pain behaviours. He explained that:…we all know it when we see it because it's not what we normally see in someone who has pain. It's a different type of behavior. And the thing about it the – these behaviours are well reproduced….……it's behaviour that is reproduced across the spectrum in different patients.[35][35] T2-44. Although Dr Baker had previously indicated in separate, but almost identical, correspondence to Dr Dique that he would be making a suggestion to the self-insurer around consideration being given to Ms Parks being assessed by a spinal unit and/or having a further independent medical examination, it is the case that, in the end, he did not include either of these suggestions in his report to the self-insurer.[36] [36] Exhibit 19. In his oral evidence, Dr Baker noted that sometimes spinal units are referred to as pain units. He considered that a pain management program involving physiotherapists and occupational therapists could deliver a more holistic approach that may have been useful in giving Ms Parks a better understanding of why she was experiencing pain.[37] [37] T2-42.

Decision

Reasons for decision

In a MRI report dated 19 October 2014, the findings included:The alignment of the lumbar spine is normal. Mild disc desiccation is evident at L4/5 with a small annular tear and disc bulge. Remainder of the disc space heights and the vertebral body heights appear normal. No spondylolisthesis or significant facet joint arthropathy. …bone marrow and cord signals appear normal. Prevertebral soft tissues are unremarkable.…CONCLUSIONMild disc bulge at L4/5 with a small annular tear. No significant central narrowing of neural compromise. In addition to being treated by general practitioner(s) during the period while Ms Parks' lower back injury claim was on foot (i.e. 16 October 2014 until 27 February 2015), she was also referred to Dr Gomez and, later, a neurosurgeon, Dr John Baker. Ms Parks told the Commission that one of her GPs from the Biloela Medical Centre, Dr Dique, prescribed pain medication including Ibuprofen, Brufen, Cymbalta, Paralink, Lyrica, Celebrex and Tramadol, yet she initially maintained the medication did not really assist in terms of her pain.[13][13] T1-17. She also recalled Dr Gomez prescribed Panadol forte, Endone and Diazapan.[14] Later, after further questioning, Ms Parks appeared to change her mind and was of the view that medication such as Endone, which she seemed to think was actually prescribed by Dr Dique, did make the pain go away. [14] T1-18. In his evidence to the Commission, Dr Gomez noted that it would abnormal for him to prescribe endone or opiate medication to treat an injury such as Ms Parks', in circumstances where he held concerns about the non-organic lumbar spine pathology. In a letter dated 18 November 2014 to Dr Richard Tan of the Biloela Medical Centre, Dr Gomez noted:Norma has a normal lower limb neurological examination bilaterally…..MRI scan shows a mild disc bulge at the L4-5 level with a minor annular tear. There is certainly no neural element compromise. Norma's symptoms are more likely the result of a musculoligamentous injury, and I have discussed this with her…asked her to continue with her physiotherapy program and will review in four weeks.[15][15] Exhibit 23. Ms Parks confirmed Dr Gomez told her on a number of occasions that there was not anything seriously wrong with her back. She told the Commission she was unhappy with what he was telling her in circumstances where she was experiencing pain. Dr Gomez issued a further workers' compensation certificate for Ms Parks on 18 November 2014, advising she would be fit to participate in a suitable duties program in the workplace after 22 November 2014 and setting out restrictions in respect of lifting, standing and walking.[16][16] Exhibit 24. Ms Parks was unable to specifically recall when she returned to work on light duties, but thought it was in November 2014. She said that part of her duties involved cleaning protective clothing, sorting and mending gloves and washing mesh clothing.[17] She said that, at the time, she felt good about returning to work.[18][17] T1-19.[18] Ibid.

Ratio Decidendi

Legal Principle Established

Dr Hendry concluded her report with the following comments:It is my opinion based on the severity of Ms Park's Adjustment Disorder symptoms and her Pain Disorder, and her associated deterioration and functioning that the workplace stressors are not solely responsible for the development of these disorders. It is my opinion that this reaction to her physical injury may be explained by some underlying personality traits that result in limited coping strategies at times of stress and make Ms Parks more predisposed to the development of an Adjustment Disorder at times of stress than an individual without personality vulnerabilities. This is supported by her psychological issues around the time of her marriage breakdown. It is also supported by her degree of anger and suspicion at her perceived injustice at her past employer and various specialists seen. It is also supported by her lack of psychological insight regarding the role of her reaction, relationship issues and her view of her own personality on her current level of functioning.Consideration In this matter, there are a number of discordant opinions from the expert medical witnesses in respect of Ms Parks' injury(s). These include the estimated timing and the onset of Ms Parks' adjustment disorder and/or pain disorder; the nature and source of Ms Parks' pain and/or whether, in fact, Ms Parks has developed a pain disorder; the nominated work and non-work stressors which may have contributed to her respective disorders; as well as the extent to which Ms Parks' work and/or non-work stressors may have contributed to the development of an adjustment disorder and/or the pain disorder. To a lesser degree, there are also some variations in the reported history relied upon by the medical practitioners when arriving at their respective conclusions. Physical Injury There is no question that on 14 October 2014 Ms Parks sustained a physical injury in the workplace when she slipped and fell onto her back. The injury was subsequently accepted by the self-insurer as an 'episode of a soft tissue injury'. Dr Gomez diagnosed the injury as a musculoligamentous strain of the lower back, as did Dr Baker in February 2015. By mid to late November 2014, it appears Ms Parks' was advised by Dr Gomez that she would gradually be returned to work on a suitable duties program and was subsequently provided with clearances in this regard. It is not in contention that in her appointments with Dr Gomez, and from at least early December 2014, Ms Parks was advised by the specialist that her MRI scans were essentially normal and that her soft tissue injury should improve significantly with simple analgesia, physiotherapy and the passage of time. It was around this period that Ms Parks requested, through her GP, that she be referred to another specialist, Dr Baker, for a second opinion. In terms of a standard recovery period for such an injury, Dr Gomez estimated it would be reasonable to deem Ms Parks' injury stable and stationary after three months of conservative management. Dr Gomez told the Commission that the majority of people he saw with an injury similar to Ms Parks' would see a significant improvement to the injury over a number of weeks, with the vast majority experiencing complete symptom resolution within four to six weeks.