Smith v Workers' Compensation Regulator - [2016] QIRC 5

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Smith v Workers' Compensation Regulator [2016] QIRC 005
PARTIES:	Smith, Patrick (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NOS:	WC/2015/155 WC/2015/156
PROCEEDING:	Appeals against decision of Regulator
DELIVERED ON:	15 January 2016
HEARING DATES:	19 and 21 October 2015 11 November 2015 - Regulator's submissions 12 November 2015 - Appellant's submissions
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Fisher
ORDERS:	1. The appeals are dismissed. 2. The decisions of the Workers' Compensation Regulator are confirmed. 3. The Appellant is to pay the costs of, and incidental to the appeals. Failing agreement, the Regulator is granted liberty to apply.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF REGULATOR – where Appellant suffered two back injuries at work - whether Appellant suffered a psychological injury secondary to either one or both of the back injuries - where no record of Appellant receiving treatment or sought any treatment for psychiatric injury prior to December 2011 or February 2012 events - where no objective evidence establishing cause of Appellant's pain - where Commission does not consider Appellant suffered a psychological injury.
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 32 Groos v WorkCover Queensland (2000) 165 QGIG 106 Lackey v WorkCover Queensland (2000) 165 QGIG 22 Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16 Sotiroulis v Kosac (1978) 80 LSJS 112
APPEARANCES:	Mr G. Hampson, Counsel instructed by Hall Payne Lawyers for the Appellant. Ms D. Callaghan, Counsel instructed by the Workers' Compensation Regulator.

Decision

Patrick Smith commenced employment with Swickers Kingaroy Bacon Factory Pty Ltd in or about 2009. Prior to his work with Swickers, Mr Smith had been engaged in various occupations, including as a furniture assembler. While performing that work in 2005, Mr Smith injured his back. He filed a Notice of Claim for Damages in relation to that injury and a secondary psychological injury.
On 21 December 2011, whilst employed with Swickers, Mr Smith aggravated his back injury. He was treated onsite with acupuncture and had little, if any, time off work. Mr Smith again aggravated his back at Swickers on 17 February 2012. Mr Smith made claims in respect of both of those injuries which were ultimately accepted by the Workers' Compensation Regulator.
Mr Smith returned to Swickers on light duties in mid-2012. In October 2012, Mr Smith was hospitalised for a non-work aggravation of his back injury. Mr Smith was retrenched in November 2012 and has not worked since then.
Mr Smith claims that as a result of the December 2011 and February 2012 injuries he has sustained a secondary psychological injury.[1] This injury was not accepted by the Regulator. There are two appeals against the decisions of the Regulator which were heard together.
[1] Throughout the hearing and in the written submissions, the terms "psychological injury" and "psychiatric injury" were used interchangeably.
The Appellant frames the issues to be determined in this appeal as:
1. Whether Mr Smith suffered a psychological injury secondary to the physical injuries sustained in either or…

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 Smith v Workers' Compensation Regulator

Details

AGLC: Smith v Workers' Compensation Regulator [2016] QIRC 5
Case: [2016] QIRC 5
Decision Date: 15 January 2016

CaseChat Overview and Summary

In the case of Smith v Workers' Compensation Regulator, the Appellant, Mr Smith, appealed against decisions of the Workers' Compensation Regulator regarding his claim for compensation. Mr Smith had suffered two back injuries at work in December 2011 and February 2012, and sought compensation for a psychological injury secondary to either one or both of the back injuries. The Regulator rejected his claim, finding that there was no evidence of a psychological injury.

The central legal issue was whether Mr Smith had suffered a psychological injury secondary to the back injuries, as required by the Workers Compensation Act. The court had to consider the evidence of medical experts, including Dr Licina, who concluded that Mr Smith's symptoms were not related to the back injuries, and Ms Nicholson, who referred to Mr Smith having underlying depression and anxiety. The court also needed to determine if the DSM IV criteria were necessary to establish a psychiatric illness and if there was a need for a temporal connection between a psychological injury and the worker's employment.

The court found that the Regulator's decision was correct and dismissed the appeal. The evidence showed that Mr Smith did not receive any treatment or seek any treatment for psychiatric injury before the 2011 and 2012 events. The court accepted that there was no objective evidence establishing the cause of Mr Smith's pain and concluded that he did not suffer a psychological injury. The court also noted that it was unnecessary to draw a conclusion about whether Mr Smith had a psychological condition prior to the 2011 and 2012 events.

The final orders of the court were that the appeals were dismissed, the decisions of the Workers' Compensation Regulator were confirmed, and Mr Smith was to pay the costs of and incidental to the appeals. The Regulator was granted liberty to apply if the parties could not agree on the costs.

Orders

Orders of the court

1. The appeals are dismissed.

2. The decisions of the Workers' Compensation Regulator are confirmed.

3. The Appellant is to pay the costs of, and incidental to the appeals. Failing agreement, the Regulator is granted liberty to apply.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Evidence from Dr Licina, Orthopaedic Surgeon, was tendered by consent. His evidence consists of a report dated 17 October 2014 and a file note of a teleconference between Dr Licina, Counsel for the Regulator and her instructor. In short, Dr Licina did not consider that as at 17 October 2014, Mr Smith had any lower back symptoms due to any work-related injuries. Although Mr Smith was limping and complained his leg was giving way, Dr Licina could not find any plausible explanations for these symptoms. There was no structural problem to his back nor was anything found on objective examination or on the imaging findings. He said that on the balance of probabilities none of Mr Smith's symptoms as at 17 October 2014 were related to the work injuries of December 2011 or February 2012. Dr Licina opined that the vast majority of soft tissue injuries resolve within 12 weeks if there is no psychological component. He attributed Mr Smith's symptoms to non-organic factors or abnormal illness behaviour.Conclusion The decision of Hall P in Groos v WorkCover Queensland[2] establishes that the DSM IV criteria do not have to be met in order to establish the existence of a psychiatric illness. In the decision in Lackey v WorkCover Queensland,[3] Hall P held that there was no need for a temporal connection between a psychological injury and the worker's employment, although the test posited by the words "arising out of" requires some causal or consequential relationship.[2] Groos v WorkCover Queensland (2000) 165 QGIG 106, 107.[3] Lackey v WorkCover Queensland (2000) 165 QGIG 22, 22. The Regulator has admitted that there is no record of Mr Smith having received any treatment or sought any treatment for any psychiatric injury or symptom prior to either the December 2011 or February 2012 events. However, the evidence suggests that Mr Smith might have had a pre-existing psychiatric condition. In this regard reference is made to the evidence of Ms Nicholson who referred in a report to WorkCover dated 27 June 2012 to Mr Smith having underlying depression and anxiety. Further, Mrs Smith's evidence about coming "through a lot of issues" after the 2005 back injury also indicates that Mr Smith had experienced mental health issues before the back injuries in 2011 and 2012. His 2005 claim, which included a claim for secondary psychological injury, tends to support this view. Although I accept the evidence of all psychiatrists that suicidal ideation of itself does not necessarily mean a person has a psychological condition, the evidence of Ms Nicholson and Dr Shaikh is that those thoughts are of long standing. Dr Shaikh was of the opinion they dated back to 2005. Despite that evidence, I note that Dr Shaikh, who examined Mr Smith many years later in 2015 in relation to the 2005 claim, did not find evidence of a psychiatric condition in relation to the 2005 incident. Ultimately, it is unnecessary to draw a conclusion about whether Mr Smith had a psychological condition prior to the events of 2011 and 2012.

Ratio Decidendi

Legal Principle Established

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