Simpson v Q-Comp
[2011] QMC 44
•12 May 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Simpson v Q-COMP [2011] QMC 044
PARTIES:
PHILLIP ARTHUR SIMPSON
(applicant)
v
Q-COMP
(respondent)
FILE NO/S:
MAG129408/09(0)
DIVISION:
Magistrates Courts – Industrial Magistrate
PROCEEDING:
Appeal against decision of Q-COMP
ORIGINATING COURT:
Magistrates Court at Cairns
DELIVERED ON:
12 May 2011
DELIVERED AT:
Cairns
HEARING DATE:
25 November 2010, 26 November 2010
MAGISTRATE:
Pearson S
ORDER:
1. The decision of the respondent dated 11 May 2009 is set aside.
2. The applicant was a “worker” within the meaning of the Workers Compensation and Rehabilitation Act 2003 from 4 March 1996 until 14 March 2008.
3. The applicant suffered a work injury resulting from his employment between 1 July 1999 and 14 March 2008.
4. The application is remitted to Q-Comp for further assessment of quantum.
5. Any application for costs of the application is adjourned pending agreement between the parties. In the absence of agreement, the parties must file written submissions with the court no later than 28 days after the delivery of this decision. Failure to comply will result in no order as to costs.
CATCHWORDS:
INDUSTRIAL LAW – WORKERS COMPENSATION – APPEAL AGAINST ADMINISTRATIVE DECISION – whether the employment was the major significant factor or a significant contributing factor to the injury
COUNSEL:
D Turnbull for appellant
PB O’Neill for respondent
SOLICITORS:
Preston Law for appellant
Respondent on own behalf
APPELLANT’S MATERIAL:
- Originating Application filed 16 June 2009
- Affidavit of Paula Dorries filed 16 June 2009
- Affidavit of Philip Simpson filed 14 October 2009
- Affidavit of Dr Peter Steadman filed 24 June 2010
RESPONDENT’S MATERIAL:
- Affidavit of Dr David Morgan filed 11 November 2010
- Affidavit of Robyn Ross filed 8 November 2010
- Records from Gordonvale Medical Centre (Exhibit 1)
- Report of Dr Hadded (Exhibit 2)
DECISION
For a 12 year period spanning 1996 to 2008, Mr Simpson worked in Cairns, Queensland as a marine surveyor employed by Lloyds Register of Ships. On a daily basis, Mr Simpson was required to inspect marine vessels of various shapes and sizes, and spent many hours each week crawling around the inside and over the outside of such vessels, making visual inspections of all parts of these ships to ensure their seaworthiness.
From 1999, Mr Simpson started to have various aches and pains in his body: particularly in his knees, shoulders and back. Ultimately, after various medical examinations, it was concluded that he was suffering from a degenerate joint condition. He says that this condition was aggravated by his work practices such that he made a claim to WorkCover for compensation for this injury which he blames on his work.
WorkCover rejected Mr Simpson’s claim, as did Q-COMP when a review of WorkCover’s decision was sought by Mr Simpson.
In this proceeding, Mr Simpson has sought to overturn the decision of Q-COMP so that his claim for compensation can then be upheld and further assessed by Q-COMP.
The orders sought by the appellant are:
- Decision of Q-COMP of 11 May 2009 be set aside;
- The appellant was a “worker” at all relevant times;
- He suffered a work injury
- Costs
Was the appellant a “worker”?
The parties agree that from 1996 until 2008, Mr Simpson was a “worker” and therefore able to avail himself of the legislative scheme applicable in Queensland that allows for workers to be compensation for work related injuries. Further, Mr Simpson has abandoned his argument that a longer period of employment should be considered.
Therefore, I find Mr Simpson was a “worker” for the 12 year period from 4 March 1996 to 14 March 2008.
Did the appellant suffer an “injury”?
The hearing proceeded on the basis that the issue for me to determine was whether Mr Simpson suffered an “injury” as defined by the legislation. The complicating factor in this case is that the legislation changed three times during the 12 years that is under consideration and there are two differing definitions which apply to different periods of time within the 12 year span.
It is agreed that the relevant time periods and definitions are (my emphasis added): -
1.2.1996 - 30.6.1999: The WorkCover Queensland Act (version 1)1.
(a) S 34(1) An “injury” is personal injury arising out of, or in the course of, employment if the employment was the major significant factor causing the injury;
(b) S 34(3)(b) “injury” includes an aggravation of a disease if the employment is the major significant factor causing the aggravation.
1.7.1999 – 30.6.2003: The WorkCover Queensland Act (version 2)2.
(a) S 34(1) An “injury” is personal injury arising out or, or in the course of, employment if the employment is a significant contributing factor to the injury;
(b) S 34(3)(b) “injury” includes … an aggravation of the following: if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation:
(i) A personal injury;
(ii) A disease;
(iii) A medical condition if the condition becomes a personal injury or disease because of the aggravation.
(c) s 34(4) For ss (3)(b), to remove doubt, is it declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
1.7.2003 – 14.6.2008: The Workers’ Compensation and Rehabilitation Act (in same terms as Version 2 above)3.
(a) S 32(1) 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
(b) S 32(3) “injury” includes the following…(b) An aggravation of the following: if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation:
(i) A personal injury;
(ii) A disease;
(iii) A medical condition if the condition becomes a personal injury or disease because of the aggravation.
(iv) For ss (3)(b), to remove doubt, is it declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
The applicant bears the onus of proof of an injury and the standard of proof is the balance of probabilities. This will require the applicant to: -
1. Specify the disease/medical condition that is suffered by him; and
2. Prove that the disease/medial condition constitutes an “injury” as relevantly defined, that is, that the employment caused or aggravated the condition to the relevant degree as it applies in each distinct period.
The applicant argues that the following parts of this body are afflicted by a disease/medical condition: -
(a) Right Knee (With the proviso that there was an injury in 1992)
(b) Left Knee
(c) Right Shoulder
(d) Left Shoulder
(e) Cervical Spine
(f) Thoracic Spine
(g) Lumbar Spine
It was not disputed that the applicant suffers from a degenerative joint disease which would amount to a disease for the purposes of the applicable legislation. Therefore, the first limb of that which must be established by the applicant can be taken as proven to the requisite standard.
The real issue in this hearing was whether the applicant’s employment was the major significant factor/a significant contributing factor to the injury (which is the aggravation of this disease).
General Background
The applicant is presently 51 years old (born 11 December 1959). He described an unremarkable childhood during which he took part in school based athletics and cricket. No injury was complained of as arising from these activities.
After completing school, the applicant took up a cadetship as a fitter and turner. This involved some degree of practical training but, again, no injury was complained of from these activities.
The applicant started work as a marine engineer in 1982 and continued in this field until 1989. This involved working in the engine room on various ships which involved physical work at times. No particular injury was complained of arising from this period.
In 1989, the applicant commenced work as a marine surveyor and this continued until 2008. This work involved the applicant conducting inspections of ships to ensure seaworthiness and the integrity of the hull and internal structures. The applicant was required to repeatedly
(a) Climb ladders and companionways
(b) Climb over structures
(c) Adopt awkward postures/twist/stretch in order to crawl through ship hulls/hatchways
In 1992, the applicant injured his right knee. This was described as a wrenching or twisting injury. He had trouble walking for a few weeks post-injury. Thereafter he: -
1. suffered ongoing symptoms (dull ache)
2. had some instability in the knee
3. wore a knee brace at work when possible
4. walked with an altered gait
The applicant consulted a doctor in China regarding ongoing problems with this knee and again in Cairns between 2002 and 2004. He took anti-inflammatory medications as needed.
The applicant’s left knee started to be symptomatic (dull ache) in 2002-2004 (although he also asserted 2000 as the starting point later in his evidence). His altered gait due to the injury to the right knee was noted as a significant contributing factor to the acceleration of the degeneration of this knee.
In 2002/2003 the applicant felt some pain to the lower back and had difficulty bending over. The medical records show that there had been some complaint of lower back pain in 1998.
In 2003, the applicant fell into a pool and hit his forehead on the bottom of the pool. He had a headache after this event and received some physiotherapy. The applicant said the onset of symptoms to the cervical spine commenced in 2004.
In January 2006 the applicant had a car accident in which he rolled his car. At a consequent medical attendance he complained to the doctor of “painful rt (right) shoulder, lt (left) knee & egg on head”. He was also diagnosed with a skull bruise to the left vertex. The applicant said the reference to the shoulder at his time referred to a long standing condition dating back to 2002. There is no reference to this condition in medical records prior to the car accident.
In July 2006, the applicant aggravated the right knee playing beach soccer. This led to surgery which revealed mild to moderate degeneration/associated meniscal tearing/mild change to the medial femoral condyle.
An MRI was performed on the applicant’s cervical spine in October 2006 with findings of degenerative changes in the discs.
Surgery was performed on the left knee in 2007 with findings of mild to moderate degeneration/associated meniscal tearing/medial femoral condyle satisfactory.
2007 was also the year the applicant first sought treatment for symptoms (pins and needles/shooting pains up the leg) referable to the thoracic spine. He said the symptoms had commenced in 2006 or 2002 (both assertions were made during evidence). Overall he has been diagnosed as having a general level of degenerative changes to the spine, worse toward to lumbar spine.
In 2008, the applicant ceased work as a marine surveyor. His condition has neither deteriorated, nor improved, since then.
Overall, having had the opportunity to observe the applicant as a witness and taking into account the consistency in his account, I find I accept the account provided by the applicant of his various ailments and of the various events which took place which may have impacted upon his present condition.
Summary of work as Marine Surveyor
The extent of this kind of physically demanding work as a component of the applicant’s overall duties as a marine surveyor is in dispute. The applicant’s career has been in three parts:
(a) 1989-1993: General duties as marine surveyor in Australia: crawling in and out of small compartments with little or no protective clothing;
(b) 1993-1996: China posting as marine surveyor. During this time the intensity of the work performed increased twofold and was described as “brutal”. The same type of work was undertaken but for shifts of up to 12 hours per day.
(c) 1996-2008: Marine surveyor in Cairns. Again, survey work was conducted on a regular basis but, in 2002, increased safety standards meant the introduction of the use of protective clothing and breathing apparatus. The work was of lesser intensity than that undertaken in China but more arduous than the 1989-1993 period. From 2000, the applicant took up the position of site manager with survey duties then reduced to 60-70% of his overall work.
The source of this information is the applicant.
An affidavit has been supplied by Ms Robyn Ross (on behalf of the Respondent). Her evidence relates to the period 1989 to 1996. She is the occupational health and safety manager for Lloyds, the company for whom the applicant worked during this period. She asserts that the applicant’s duties did not involve constantly crawling in and out of small compartments. Further, she states this would have been required on occasion but would not have been the majority of the work undertaken.
However, Ms Ross has been employed with Lloyds only since 2008 and makes this assertion based on performance review records and her present understanding of the nature of a marine surveyor’s duties. In my view, these factors significantly undermine the weight that can be attached to Ms Ross’s evidence. It is clear she has no direct personal knowledge of the circumstances under which the applicant worked.
Ms Ross was not required by the applicant for cross-examination. Therefore, this evidence is unchallenged but must be weighed against the evidence of the applicant as I have assessed it having had the opportunity to observe the applicant give his evidence and having undertaken the process of assessing his account generally.
Overall, I accept that the applicant’s work as a marine surveyor did involve a significant degree of physically demanding work as described by him as summarised at paragraph 31 above.
Impact of work as marine surveyor on applicant’s condition
Evidence was presented from two orthopaedic surgeons: Dr Steadman (by the applicant) and Dr Morgan (by the respondent). The expertise of each doctor was accepted.
Dr Steadman reached the following conclusions:
1. The applicant suffers from degenerative joint disease in each of the parts of the body specified by the applicant;
2. His overall condition was the result of a combination of “recurrent occupational practice” and constitutional degeneration (which was said to take account of the underlying genetic disposition for the degeneration, plus lifestyle and out of work practices);
3. For the period 1996-1999, the applicant’s work duties could not be seen to be the major significant contributing factor in relation to each part of the applicant’s body (right knee excluded) (T2-26 L20-30). The major contributing factor was “degeneration” in addition to the “brutal” work conditions endured while in China and the impact of the 1992 injury to the right knee upon the left knee;
4. For the period 1996-1999, the applicant; work duties could not be seen to be the major significant factor causing the injury to the right knee (T2-21 L35-50). It was, instead, the 1992 injury.
5. For the period 1999 to 2008, taking into account the applicant’s underlying degenerative condition, his obesity, out of work activities, motor vehicle accident and pool fall, Dr Steadman would attribute a 55%-70% contribution to the applicant’s overall state (excluding the right knee) to pre-existing pathology and therefore 45%-30% to work practices (T2-28 L1-40). Therefore, his work activities could be seen as a significant contributing factor to the aggravation of the disease suffered by the applicant to all parts of the body specified by the applicant.
6. With regard to the right knee, in his report of 18.1.10, Dr Steadman asserted work related activities were a significant contributing factor to the aggravation of the disease of the right knee (The Table refers to a contribution of 50% by work practices with 2/3 of the overall degenerative condition attributable to the period 1999-2008).
Dr Steadman based his opinions on information from the applicant. The factual basis for the opinions was tested at hearing and the above series of conclusions is a summary of his amended conclusions.
However, I must assess these opinions in light of the competing opinions of Dr Morgan.
Dr Morgan reached the following conclusions:
1. The applicant suffers from a degenerative condition with his injuries being due to osteoarthritic disease which is progressive in nature.
2. His present condition arises from: -
(a) Social activities;
(b) Recreational pursuits;
(c) Domestic tasks;
(d) Work duties (perhaps 10%/ minor overall contribution);
(e) Constitutional disorder (70%).
This related to the total period of 20 years during which the applicant worked as a marine surveyor.
3. Dr Morgan stated that the work practices were probably the major cause of the aggravation of the applicant’s condition from 1996 to 1999 but that, overall, the contribution of the work practices over the total period under consideration was about 10%.
4. He considered the physical aspects of the applicant’s work would have been good for him. The applicant could have worked in a sedentary job and ended up with the same ailment to the spine in particular.
5. He disagreed with Dr Steadman’s opinion that the underlying condition was aggravated by the work activities with a gradual worsening of the impact as the condition deteriorated over time. Instead, he opined that the physical activity would have helped stave off the effects of the underlying condition which was progressively getting worse of its own accord.
I have had regard to the written reports produced by the doctors and to the evidence they each gave during the course of the hearing. They both have impressive expertise in orthopaedic medicine. Each provided strong opinions and gave justification for such opinions.
In the end, I was impressed by Dr Steadman’s efforts in explaining the justification for his opinions which related to the faster progression of the disease exponentially over time and the impact of the work practices in these circumstances. I accept this as a reasonable basis for these opinions which I have found to be persuasive.
Overall, I find I prefer the evidence of Dr Steadman and I accept his opinions, the justification for them, and I am satisfied that he based these opinions upon an adequate factual basis. In light of this evidence I have reached the following conclusions: -
Conclusions:
The applicant was a “worker” for the 12 year period from 1996 to 2008.
For the period 1 February 1996 through until 30 June 1999, on balance, I cannot be satisfied that the employment was the major significant factor causing the injury (being the aggravation of the disease suffered by the applicant) to all of the various parts of the body specified by the applicant.
For the period 1 July 1999 through to 2008, I am satisfied, on balance, that the employment was a significant contributing factor to the injury (being the aggravation of the degenerative joint disease) to all of the various parts of the body specified by the applicant.
Orders:
1. The decision of the respondent dated 11 May 2009 is set aside.
2. The applicant was a “worker” within the meaning of the Workers Compensation and Rehabilitation Act 2003 from 4 March 1996 until 14 March 2008.
3. The applicant suffered a work injury resulting from his employment between 1 July 1999 and 14 March 2008.
4. The application is remitted to Q-Comp for further assessment of quantum.
5. Any application for costs of the application is adjourned pending agreement between the parties. In the absence of agreement, the parties must file written submissions with the court no later than 28 days after the delivery of this decision. Failure to comply will result in no order as to costs.
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