Walker v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 204
•5 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Walker v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 204 |
PARTIES: | Walker, Robert v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/53 |
PROCEEDING: | Appeal against decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 5 December 2014 |
HEARING DATES: | 24 June, 7, 8, 9 and 11 July 2014 |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: | 1. The appeal is dismissed in respect of the claim for the physical and psychiatric injuries. 2. The decision of the Regulator is confirmed. 3. The Appellant is to pay the Regulator's costs of and incidental to the appeal. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - where a worker sustained symptoms after drinking contaminated water - where the composition of the contaminated water is unknown - whether the contaminated water caused the symptoms - where the worker suffered a psychiatric injury - whether the psychiatric injury was secondary to the physical injury or a discrete injury - whether the psychiatric injury arose out of reasonable management action taken in a reasonable way. |
| CASES: | Workers' Compensation Act 2003, s 11, s 32 R v Turner [1975] QB 834 Pollock v Wellington (1996) 15 WAR 1 Q-COMP AND Ronald Wayne Riggs (2005) 179 QGIG 251 |
| APPEARANCES: | Ms S.D. Anderson, Counsel instructed by Turner Freeman Lawyers for the Appellant. |
Decision
Robert Walker is an employee of Mackay Sugar Limited at its Mossman Mill. On Saturday 20 July 2013 Mr Walker was working on the milling train when, at about 11.00 am, he stopped to have a drink from a water fountain. The water was contaminated. Mr Walker returned to work after washing his mouth and continued to work for the rest of the day.
Mr Walker claims to have sustained a physical injury and a psychiatric injury as a result of drinking the contaminated water. His application for compensation was accepted by WorkCover Queensland. On review, Simon Blackwood (Workers' Compensation Regulator) set aside the decision of WorkCover and substituted a decision to reject the application for compensation. This appeal deals with both claimed injuries.
The Employer was granted leave to appear and be heard in the proceedings.
The Commission accepts the submissions of the parties and the Employer that Mr Walker is a worker within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003. Both the Regulator and the Employer accept that Mr Walker sustained a psychiatric injury. The issues in dispute are:
· whether Mr Walker sustained a physical injury;
· whether any physical injury was an aggravation of a pre-existing injury;
· whether any physical injury (or aggravation) arose out of or in the course of employment;
· whether employment was a significant contributing factor to any physical injury (or aggravation);
· whether the psychiatric injury is a secondary injury to any physical injury or whether it is a stand-alone injury;
· whether the psychiatric injury arose out of or in the course of employment
· whether employment was a significant contributing factor to the psychiatric injury; and
· whether the psychiatric injury is excluded because it arose out of or in the course of reasonable management action taken in a reasonable way.
Was Mr Walker injured from drinking water from a water fountain?
Brief Facts: At about 11.00 am on 20 July 2013, Mr Walker stopped work to have a drink of water from a water fountain. The water initially ran clear but within about 20 to 30 seconds of drinking the water Mr Walker felt an overpowering chemical like taste in his mouth. However, he did not stop drinking straight away.
Byron Jensen, Fitter and Turner and Brendan Watkins, Boilermaker were working at another part of the Mill and found that the water coming out of a tap near them was green and smelt terrible, like pond water. Mr Jensen took steps to address the problem. They both saw Mr Walker drinking from the water fountain and yelled for him to stop. Mr Jensen ran towards him and told him there could be contaminants in the line. Mr Jensen did not see Mr Walker spit out any water but said he was complaining about having a bad taste in his mouth. Mr Walker told Mr Jensen he believed he had drunk pond water. Mr Watkins estimated that Mr Walker had been drinking the water for about 30 seconds.
Mr Jensen sent another worker to get a supervisor and took Mr Walker to wash around his mouth at a set of three taps and basins. When Mr Jensen turned a tap on at one of the basins, pond water bubbled up and got onto Mr Walker's hands. Mr Walker said that it was having some sort of effect on his hands. At that point Mr Jensen took Mr Walker to the amenities block. Mr Jensen said green water came out of the taps there and while it did not smell at first, it soon smelt like "crap … a horrible smell". He said it smelt similar to pond water.
Mr Watkins saw the water that came out of the water fountain. He said it had "a real bad smell" and "you could see a bit of green in it". He also saw the water that came from the taps in the hand basins and described it as having "a real bad smell". He was aware that Mr Walker returned to work after the incident as he checked on him later that day. Mr Walker told him he had a numb feeling in his mouth "or something".
John Irvine, the Chief Electrician, who said he completed the Incident Report Form with Mr Walker after the event, did not notice any redness to Mr Walker's hands and heard no complaint about a burn to his mouth.
On that day repair work was being undertaken to a water pipe that had been leaking. To carry out the repairs, the town water at the Mill had been turned off. Due to a confluence of events, including a pump continuing to operate, the contents of the effluent pool and the pond entered the town water line and into the water fountain.
In addition, a "caustic boil" was being undertaken that day. That process involves pumping a caustic soda solution into a stock tank and moving it through 10 interconnected vessels back to the stock tank where it is then released into the effluent ponding system. This task is undertaken once a year after crushing has finished. The evidence did not clearly establish whether this process was still underway or had been completed at 11.00 am.
Mr Walker returned to work. He did not tell his co-workers what had happened as he was upset. During the afternoon Mr Watkins came to ask him whether he was "alright" and he replied, "Let's just get the job done". Mr Watkins believed Mr Walker referred to a numb feeling in his mouth. He completed his shift at 5.00 pm, despite being asked by Mr Irvine to undertake another task that day.
Mr Walker returned to work on Tuesday 23 July 2013 and continued to work until he decompensated on 19 August 2013. Mr Watkins said he saw Mr Walker around the Mill during this period and he "just wasn't the same as he usually is … it affected him."
Mr Walker's symptoms: In his evidence Mr Walker described how his symptoms developed as follows. On drinking the water he felt an overpowering chemical like taste in his mouth but he did not burn his mouth. He felt tingling on his hands. He subsequently developed burning pins and needles in his tongue, which went away. Then a numbness came up his throat, into his tongue and then his tongue and front bottom lip went numb. The numbness persisted for a long time as did the overpowering chemical taste in his mouth. He also developed pain in his abdomen and stomach which eventually went away. He experienced burning diarrhoea which, according to his evidence, occurred only on 3 August 2013.
Mr Walker did not work on Sunday 21 July or Monday 22 July 2013, which was the Mossman show holiday. Mr Walker took his children to the show on the Sunday and possibly the Monday. Mr Walker said he had an overpowering chemical taste in his mouth and ate a lot, such as a dagwood dog, chips and candy floss, to try to get rid of it.
Mr Walker began to fell unwell on his return to work on 23 July 2013 and "got sicker and sicker". On Sunday 28 July 2013 Mr Walker went to the Mossman Hospital complaining of pins and needles in his tongue. He was "freaking out." He told Dr Currie, a Senior Medical Officer at the Hospital, that he had ingested chemicals at work but he was unable to state what chemicals were involved. Mr Walker said Dr Currie recommended he consult his General Practitioner.
Dr Currie said that no formal consultation took place; their discussion took place at the reception desk. Mr Walker told him he had ingested polluted water, his symptoms had abated and he was seeking a workers' compensation certificate.
Mr Walker attended on his General Practitioner, Dr Guirguis of the Port Village Medical Centre on 31 July 2013. Dr Guirguis's notes of that consultation record Mr Walker as "now complaining of headache, bad taste in mouth and abdominal pain". On examination of Mr Walker's mouth Dr Guirguis did not find any physical damage such as mouth lesions, ulcers or redness. Dr Guirguis also did not notice any abnormality about Mr Walker's hands that would have suggested burning. Some slight upper abdominal tenderness was found on examination. Dr Guirguis requested full blood tests which returned normal results. He also requested other tests to evaluate Mr Walker's kidney and liver function and electrolytes. Except for a slight elevation in uric acid, the tests returned normal results.
Mr Walker returned to see Dr Guirguis on 7 August 2013. At that consultation, Mr Walker reported being worried about his health and experiencing burning diarrhoea, headaches and a bad taste in his mouth. Mr Walker said the burning diarrhoea only occurred on 3 August, however, Dr Guirguis's notes record three days of it - 3 to 5 August 2013. As a result of his consultation, Dr Guirguis issued a workers' compensation medical certificate specifying the date of incapacity for work commenced on 31 July 2013.
Dr Guirguis said that in relation to the first two consultations with Mr Walker no medical treatment was given as there was no clear diagnosis despite sending him for blood tests.
Mr Walker again consulted Dr Guirguis on 16 August 2013 about numbness in the tongue as well as headache and upset stomach.
This consultation was the first time numbness in the tongue had been mentioned. Previously, Mr Walker had only reported a bad taste in his mouth. Again no treatment was provided as Dr Guirguis was awaiting a toxicology report from the Mill following a request he made by letter of the same date. Mr Walker had not told Dr Guirguis he had received a sample of the water on 8 August 2013.
In addition, Mr Walker reported some mental health issues but these are considered under the heading of psychiatric injury. Dr Guirguis issued another workers' compensation certificate certifying that he was unfit for work from 15 to 31 August 2013.
Mr Walker also reported ongoing numbness in his tongue and lips during consultations on 19 and 28 August 2013 and various stomach complaints over that period.
Mr Walker's medical history: The medical records from the Port Village Medical Centre establish that Mr Walker has a long history of gastrointestinal complaints. In addition, the medical records of Mr Walker from the Mossman Hospital disclose that in January 1998 a Gastroenterologist provided an opinion that Mr Walker most likely has Irritable Bowel Syndrome (IBS). Over the ensuing years, Mr Walker suffered from bowel problems; diarrhoea including "explosive" diarrhoea; reflux; abdominal cramps and a bad taste in his mouth. A slight elevation in uric acid had also been found in past tests.
Dr Guirguis was unaware of Mr Walker having been diagnosed with IBS and said there was nothing in Mr Walker's history to suggest to him that Mr Walker was suffering from this condition. If Mr Walker had IBS it was largely asymptomatic for the period of time he had been under his care.
Dr Guirguis had not heard Mr Walker complaining of a bad taste in his mouth with reflux. However, this symptom had been reported on other occasions such as with giardia where he had diarrhoea and abdominal cramps.
On 28 August 2013, Dr Guirguis referred Mr Walker to Dr Bernard Chin, Consultant Gastroenterologist, as Mr Walker had been complaining of tingling in the tongue and lower lip. Dr Guirguis also noted in his letter of referral that Mr Walker "last weekend" had diarrhoea and abdominal pain for three days. Dr Chin prepared a report for Dr Guirguis and reports at the request of WorkCover and Mr Walker's Solicitors.
Dr Chin undertook various procedures and the results are discussed later in this decision.
In his evidence Dr Chin was taken to Mr Walker's medical history and noted he had reported symptoms in the upper and lower gastrointestinal tract, including irritable bowel and reflux, with acute and chronic elements going back at least two years. Dr Chin also diagnosed Mr Walker with IBS and coeliac disease.
Can Dr Robertson's report be accepted?: The parties and the Employer agree that Mr Walker drank contaminated water on 20 July 2013. However, Mr Walker contends that his symptoms were caused by drinking contaminated water. The Regulator and the Employer reject this contention that any of the symptoms were caused by drinking contaminated water. Accordingly, they submit Mr Walker did not sustain an injury within the meaning of s 32 of the Act.
Dr Michael Robertson is a Consultant Forensic Toxicologist, who holds a doctorate in Forensic Medicine. For his report, Dr Robertson undertook a file review and the majority of the history was taken from the letter of instruction given to him by Mr Walker's Solicitors. Dr Robertson was informed that the water burnt Mr Walker's hands; that he spat the water out; that he experienced a tingling/burning sensation to his tongue and lips and he had an ongoing burning sensation in his mouth after ingestion. In addition, Dr Robertson was told that about three days after ingestion, Mr Walker experienced abdominal pain, burning diarrhoea, headaches and ongoing mouth symptoms. These instructions are not supported by the evidence of either Mr Walker or Dr Guirguis's medical records.
Whether the Commission should consider the evidence of Dr Robertson was addressed by the Regulator. Reference was made to the decision in R v Turner[1] where Lawton LJ said:
[1] R v Turner [1975] QB 834, 835.
". . . Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgment, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based . . ."
In addition, Anderson J said in Pollock v Wellington:[2]
"Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be grounded upon those facts."
[2] Pollock v Wellington (1996) 15 WAR1, 3.
It is clear that Dr Robertson was misinformed about the history of Mr Walker's symptoms. In the light of the authorities cited, I have decided to disregard his evidence.
Were the symptoms caused by exposure to a caustic solution in the water?: The parties and the Employer accept that Mr Walker drank contaminated water on 20 July 2013. The evidence shows that Mr Walker drank the water for between 10 and 30 seconds. At most it appears that he would have consumed one cup of water. The evidence also establishes that Mr Walker continued to drink the water and he did not spit it out despite its peculiar taste. Further, the water fountain had a filter.
The composition of that water has not been able to be established because no sample was taken on the day. The Commission accepts that the analysis of the sample taken on 8 August 2013 does not reflect the composition of the water on 20 July 2013. Accordingly, consideration needs to be given to what might have been in the water on 20 July 2013 to cause Mr Walker's symptoms in light of the repair work and caustic boil process that were undertaken at the Mill that day.
The Commission makes the following factual findings in relation to the caustic boil process and its effects on the effluent ponding system. These findings were helpfully drawn together in the (separate) submissions of the Regulator and the Employer and are accepted by the Commission as being established by the evidence of Mr Butland, the Operations Manager of the Mill, and Mr Matthews, Plumber:
· The pool contained a volume of 150,000 litres and the pond contained a volume of 2 megalitres.
· The pond and the pool are connected by a weir which allows the pool to flow into the pond.
· The maximum quantity of caustic material (at 15% solution) which may have found its way to the 2.15 mega litre holding tanks was at most 500 litres (a factor of .000232558).
· The ingress of the 15% caustic solution was by entry pipe direct on to the surface and the egress of pond water occurred from a pipe which was "about a metre" below the surface of the pond. The water was circulating. This would have had no effect of altering the pH of the pond water.
· The caustic is recycled but once the caustic left in the solution gets down to a percentage of 2% upon testing by the laboratory it is flushed into the pond. This happens once per year and was before 20 July 2013.
· The addition of the caustic solution to the contents of the pool and pond would not raise the pH at all given the volume in the pool and pond.
· The contents of the pool and pond are sugar juice, mud and water and it is generally acidic with a low pH.
· Lime is added into the pool and pond to equalize the pH value and neutralise it.
· The water from the pool and pond has been re-used back in the milling process in the past.
· The mud from the pool and pond is ultimately used as a fertiliser on the cane fields.
· The water which flowed into the drinking fountain was mixed with an unknown quantity of fresh water that was already in the pipes.
Dr Robert Hoskins gave evidence for the Regulator. He holds a medical degree and a Master's degree in forensic medicine. As part of his Master's degree, Dr Hoskins study included a one year subject in forensic toxicology. He is a Fellow of the Australian College of Legal Medicine and the Faculty of Forensic and Legal Medicine of the Royal College of Physicians, London. Until May 2013 Dr Hoskins was employed as a Senior Forensic Physician in the Clinical Forensic Medicine Unit, Queensland Health and had previously been deputy director of that unit for two years and director for 10 years. Dr Hoskins is currently employed full-time at the two Queensland alumina refineries. Dr Hoskins was an impressive witness, who is not only an expert, but who was prepared to make concessions where necessary. Except where he defers to Dr Chin's specialist knowledge, Dr Hoskins' evidence is accepted.
Dr Hoskins prepared two reports at the request of the Regulator. In his first report, Dr Hoskins considered the likelihood of Mr Walker's symptoms being caused by some exposure to a caustic agent in the caustic boil and concluded that this was not plausible for multiple reasons. His second report confirmed this opinion. Dr Hoskins explained that caustic burns occur immediately and are typically at their worst within 24 hours of contact. Had he been burned by a caustic solution then he would have presented with severe burns to his mouth, throat and gullet. He would not have enjoyed a dagwood dog the following day. Further, Mr Walker's symptoms indicated disease or illness affecting primarily the large and small bowel. It is not possible for a concentrated alkaline, i.e., caustic soda, to reach the large and small intestine without damage to the mouth, throat and gullet.
He also gave evidence under cross-examination that when caustic soda comes into contact with the skin in a low concentration it can result in a tingling sensation only if there is damage to the skin. It can cause a tingling or burning sensation in the mouth because of the taste receptors in the tongue but he could not conclude that the tingling in his mouth felt on the day was caused by caustic solution in the water. [In any event Mr Walker did not report tingling in his mouth that day.]
In his evidence, and having been given the information contained in dot points 1, 3, 4 and 5 of paragraph [37] above. Dr Hoskins said that the final concentration of caustic solution in the pond water would not be sufficient to give rise to any damage.
Dr Chin performed a gastroscopy and colonoscopy on Mr Walker on 4 October 2013. Neither of those tests showed any evidence of physical damage consistent with Mr Walker suffering a chemical burn to his gastrointestinal system. Dr Chin diagnosed mild erosive oesophagitis as a result of the gastroscopy, which he attributed to reflux (GORD) and mild sigmoid diverticulitis as a result of the colonoscopy. As there was no macroscopic evidence present, Dr Chin also performed routine mucosal biopsies to check whether there was any microscopic evidence of damage or inflammation. The results showed there was not. However, there was an incidental finding of coeliac disease, which Dr Chin believed was unrelated to any ingestion of toxins or infection. Dr Chin said that had Mr Walker ingested a caustic agent then there would be evidence of a burn to his throat and gastrointestinal tract but whether such damage would be evident at the time the endoscopy was performed depended on the severity of the insult. If large quantities had been ingested then Dr Chin would have expected to see damage, however, Mr Walker did not show any such signs.
Dr Chin opined that if there were either caustic or erosive materials in the contaminated water then almost immediate mucosal damage would occur, i.e., within 24 hours.
In giving evidence to the Commission, Dr Hoskins was referred to the gastroscopy report of Dr Chin and asked to express an opinion on whether the mild erosive oesophagitis was likely to have been caused by the ingestion of some caustic or acidic agent. Dr Hoskins referred to the photograph attached to the report that indicated localised area of damage. As the length of the oesophagus was not damaged, he considered the oesophagitis was more likely to have been caused by reflux than by consumption of either an acidic or alkaline agent. Further, the damage in the photograph was of much more recent origin than would have been expected from the drinking fountain incident.
For the water to have caused damage, the inside of the mouth, the surface of the tongue and the back of the throat to the gullet all would have sustained damage. Such damage would have been most marked 24 hours after the initial point of contact. The areas would then heal with either no scarring or residual visible scarring. If there was no scarring then the areas would be expected to heal within two weeks at the absolute upper limit. Given the examination by Dr Guirguis of Mr Walker's mouth on 31 July 2013, Dr Hoskins was of the opinion that any damage caused by the ingestion of water had healed by that time.
If the causal agent were of a corrosive nature, either acidic or alkaline, then significant symptoms would be expected to appear within six hours and at their most pronounced 24 hours later. They would persist for several days and then start to heal.
Finding: Dr Hoskins' first report addressed in some detail the effects of caustic soda on the human body. He was clearly of the opinion that it was not plausible for caustic soda to be ingested in sufficient concentration and quantity to give rise to the symptomatic damage to the stomach and burning diarrhoea coming on days later without first giving rise to clinical signs and symptoms at the mouth and hands, the first points of contact. His second report explained that any caustic solution could not cause the symptoms experienced by Mr Walker without causing damage to his mouth, throat and gullet. There is no evidence these parts of Mr Walker's body were damaged.
Dr Chin's evidence is to the effect of the ingestion of a caustic solution supported that of Dr Hoskins.
Based on the evidence of Dr Hoskins and Dr Chin, and in light of the evidence of Mr Butland and Mr Matthews about the quantity of caustic solution that would flow to the pond, the Commission is not satisfied, that Mr Walker's symptoms were caused by exposure to a caustic agent used in the cleaning process.
Did a bacterial infection cause the symptoms?: Mr Walker variously complained to Dr Guirguis of abdominal pain, burning diarrhoea and an upset stomach. Such symptoms may be indicative of a bacterial infection. In his letter to Mr Walker's Solicitors dated 16 April 2014, Dr Guirguis said that it was unlikely that Mr Walker suffered an acute gastrointestinal infection as a result of drinking water from the fountain at his workplace. However, drinking contaminated water may have exacerbated his previous gastric symptoms.
Dr Hoskins considered the possibility of bacterial contamination in the water. He was of the opinion that had Mr Walker sustained a bacterial infection from the water in the drinking fountain then he may not have been symptomatic at the time of his visits to the Mossman Show and was thus able to consume a variety of food.
He explained there were two ways in which foods and other substances cause gastrointestinal upset. One way is that organisms produce a toxic substance and the consumption of that substance may cause vomiting, diarrhoea and abdominal pain. The other, more common way, is that the organisms cause an infection which then gives rise to nausea and/or vomiting and/or diarrhoea. In either scenario, Dr Hoskins said that the symptoms would arise about two to three days after consumption.
He opined that if the bacteria were capable of causing disease and a disease was caused by them, then a delay of between two days up to a week may be plausible, depending on what they were. He considered a delayed onset of symptoms for 13 days to be "a bit long" even were they caused by a bacterial agent.
Dr Hoskins was prepared to concede as a possibility, although unlikely, that on the facts given to him, Mr Walker suffered a short-term bacterial illness (diarrhoea) as a result of the consumption of the water more than ten days earlier. The abdominal pain reported to Dr Guirguis on 31 July 2013 may have been the initial symptoms of what later became the diarrhoea. He was not prepared to accept as a certainty that Mr Walker was injured by drinking water from the fountain.
In his report of 3 May 2014 to Mr Walker's Solicitors, Dr Chin advised:
"Bacterial toxins typically cause symptoms within hours. Bacterial and viral gastroenteritis typically cause symptoms within 24 hours. Toxic molecules causing direct tissue damage can conceivably cause symptoms over days."
In re-examination Dr Chin was asked to accept that the diarrhoea came on two weeks after ingestion of the water and whether in that circumstance the ingestion aggravated the IBS. He replied that he would find it hard to believe there was an infection in the water. Dr Chin confirmed his opinion that were there bacterial or viral elements in the water then symptoms would be expected to appear within 24 hours. He considered there was a "non-specific relationship" between the ingestion of water and the burning diarrhoea experienced by Mr Walker on 3 August 2013. In his opinion, two weeks was a long time between exposure and the development of symptoms.
Darren Matthews was working at the Mill on 20 July 2013 repairing a burst water pipe. He also drank for about three or four seconds from a water fountain at about 11.30 am that day, albeit a different one to the one used by Mr Walker. Mr Matthews said he did not necessarily notice anything unusual about the water from the fountain he used. The water did not taste terrible or like pond water. However, he became sick within the following Tuesday or Wednesday with nausea, headaches and stomach cramps. Mr Matthews was sent home from work and attended the Mossman Hospital where he was treated for giardia. The tablets he was given did not assist his condition. Mr Matthews was sick for three or four days. He did not attend the Mossman Show.
Dr Hoskins was not prepared to concede that because Mr Matthews became ill after drinking water from another fountain at the Mill on 20 July 2013 that the cause was a bacterial infection. It was a possibility, but other causes were open.
Finding: Dr Chin discounted a bacterial infection being the cause of the symptoms given the delay between ingestion and the symptoms. Dr Hoskins was prepared to concede a bacterial infection as a possibility but not a probability. In light of this evidence the Commission cannot be satisfied on the balance of probabilities that a bacterial infection caused Mr Walker's symptoms.
Were the symptoms caused by an irritant in the water?: Dr Guirguis said that swallowing an irritant to the stomach such as an acid or chemical would cause the gastric symptoms Mr Walker experienced given his history.
Under cross-examination Dr Chin could not rule out the erosive oesophagitis he found on the gastroscopy being aggravated by the ingestion of a low dose of a toxic substance. Dr Chin believes Mr Walker has IBS which "may be a direct consequence of ingestion of possible contaminants or due to psychological distress at the possibility of ingesting toxins". However, these possibilities were speculation as there was no scientific evidence to explain what had caused his gastrointestinal symptoms. He believes that the ingestion of an irritant, i.e., contaminated water, could have triggered Mr Walker's IBS and contributed to his long term symptoms but he could not be confident about the cause of the acute symptoms. Because of his history, Mr Walker is susceptible to flares "out of the blue" or from infections. Ultimately, Dr Chin believed that the options for the abdominal complaint were a spontaneous flare or the ingestion of contaminated water. On the scientific evidence he could not provide a definitive opinion.
Dr Chin could not rule out Mr Walker's bout of diarrhoea being caused by a mild irritation from chemicals. Equally, he could not rule out anything that might have happened in the interim.
Dr Hoskins said it was beyond his expertise to state whether there was an irritant in the water that may have triggered IBS.
Finding: Dr Chin's evidence does not support a conclusion that on the balance of probabilities an irritant in the water caused Mr Walker's symptoms or aggravated his IBS.
Could another agent have caused the symptoms?: This was considered by Dr Hoskins in his second report. In particular, he considered calcined lime, lead poisoning, arsenic and cadmium toxicity as possible agents.
Dr Hoskins excluded calcined lime because ingestion would have given rise to the alkaline burns similar to those caused by caustic soda. In the absence of such burns being detected, calcined lime was considered an unlikely cause.
Lead poisoning and arsenic are detectable by blood tests. Dr Guirguis required Mr Walker to have a full blood work up and no abnormalities were detected. There is no evidence before the Commission as to whether tests were ordered to determine the presence of either of these substances.
Dr Hoskins also excluded cadmium toxicity on the basis that Mr Walker's presentation was inconsistent with its effects.
Finding: The evidence before the Commission does not establish that other agents caused Mr Walker's symptoms.
What caused the chemical taste, pins and needles and numbness?: The first symptom Mr Walker experienced was a chemical-like taste in his mouth. This symptom did not prevent Mr Walker from returning to work that day and completing his day's work nor did it prevent him from eating or drinking. The chemical taste in Mr Walker's mouth did not prevent him from attending the Mossman Show on 21 and possibly 22 July 2013 where he consumed a range of snack food such as a dagwood dog, chips and candy floss to mask the chemical taste in his mouth. However, the consumption of this food did not dissipate the chemical like taste.
This symptom was first reported as a bad taste in the mouth on 31 July 2013 when Mr Walker consulted Dr Guirguis.
Dr Chin considered at the time the endoscopy was performed that a bad or metallic taste in the mouth was a non-specific symptom that could be related to the ingestion of water but other things could also give rise to such a symptom.
Dr Hoskins commented in his first report on the appearance, colour, smell and taste of the water consumed by Mr Walker. He said that just because water has these features does not mean it makes a person chronically sick.
Mr Walker's evidence is that on 27 July 2013 he told Dr Currie of the Mossman Hospital that he had pins and needles in his tongue. This was his first attendance on a medical practitioner. Mr Walker's evidence is inconsistent with that of Dr Currie who said Mr Walker told him his symptoms had abated. I prefer the evidence of Dr Currie as his actions are consistent with his evidence; he was aware Mr Walker had ingested contaminated water but he was asymptomatic on presentation. For that reason he did not order investigations and suggested Mr Walker consult his General Practitioner. Although Dr Currie's record keeping was less than ideal, I am satisfied that had symptoms of pins and needles in his tongue been reported then he would have made a note and attended to him.
Mr Walker's first complaint to a medical practitioner of symptoms was to Dr Guirguis on 31 July 2013. He reported a range of symptoms but tellingly, he did not report he was experiencing pins and needles in his tongue; the symptoms which he said he told Dr Currie about and which caused him to believe his condition was serious and requiring medical attention. The absence of a report to Dr Guirguis of pins and needles in his tongue on his first consultation is another reason I do not accept Mr Walker's evidence about his contact with Dr Currie.
Dr Guirguis attributes the tingling and the numbness to the ingestion of a chemical in the water.
Dr Hoskins was unable to construct a hypothesis that would link numbness of Mr Walker's tongue and lips more than three weeks after the ingestion to anything he put in his mouth. In particular, bacteria, a caustic agent or acid would not cause those symptoms.
Dr Chin could not provide an explanation for the numbness in Mr Walker's tongue and lower lip or the burning pins and needles in his tongue by reference to his existing conditions. Dr Chin believed that psychological factors might have been at play.
Finding: Based on the specialist medical evidence before me I find it is improbable that any of these symptoms were related to the ingestion of contaminated water.
Conclusion - Did Mr Walker sustain an injury from drinking contaminated water?: Although the evidence is uncontroverted that Mr Walker drank contaminated water I am not satisfied that he suffered any physical injury. He first reported symptoms to a medical practitioner on 31 July 2013, some 11 days after the event. His symptoms varied over time. His initial symptom was that of a chemical-like taste in his mouth. A bad or chemical like taste in the mouth is a non-specific symptom and is not evidence of injury. While he experienced some tingling on his hands when he washed them at another basin, there is no report of his hands being burnt. There is also no evidence that he sustained any burning to his mouth, tongue, lips, throat or gullet or that there was any damage to these parts. For these reasons exposure to a caustic solution is excluded.
Dr Guirguis had no doubt that the ingestion of the water triggered all of the symptoms reported by Mr Walker. However, he was unable to answer whether the delay between ingestion and the onset of the symptoms meant that the symptoms were causally related to the ingestion. In his opinion, that depended on what Mr Walker ingested and the concentration of the chemical.
The Commission acknowledges that Dr Guirguis has been Mr Walker's treating General Practitioner for many years and has more detailed knowledge of his medical history. However, he was unaware that Mr Walker had been diagnosed as likely having IBS as far back as 1998. I accept that Dr Guirguis was not Mr Walker's treating General Practitioner at the time and note his evidence that Mr Walker was asymptomatic while under his care. Despite Dr Guirguis's knowledge of Mr Walker's medical history, I have relied on Dr Chin in relation to the diagnosis of Mr Walker's gastrointestinal conditions. I have also relied on the evidence of Drs Chin and Hoskins in determining the relationship between the ingestion of the contaminated water and the symptoms Mr Walker reported. Their specialist training, education and experience in their respective fields is to be preferred to that of a General Practitioner.
Dr Chin acknowledged a temporal relationship between Mr Walker's symptoms and ingesting the contaminated water. However, his oral evidence clarified his opinion. Dr Chin was unable to state with certainty whether the ingestion of the contaminated water caused the symptoms and said it was unlikely based on scientific evidence. He considered as a possibility that Mr Walker may have suffered a random flare of gastrointestinal symptoms.
A bacterial infection was considered by Drs Hoskins and Chin as a possibility but was not considered to be a probable cause. Dr Hoskins also considered as possibilities that Mr Walker acquired some form of gastroenteritis as a result of amoebic or viral contamination of the water, however, that opinion was proffered on the basis of accepting that Mr Walker's symptoms arose three days or more after ingestion. Given that did not occur those possibilities are also discounted.
Dr Hoskins considered a range of agents as possible causes of Mr Walker's symptoms but was unable to identify any that would have given rise to them. The blood tests did not show any abnormalities.
The symptoms were not constant and varied over time. He reported headaches on 31 July, 7 August and 16 August 2013. On 31 July and 7 August 2013, in addition to the headache, Mr Walker reported a bad taste in his mouth and abdominal pain. On 7 August he reported burning diarrhoea as well as the headache and the bad taste in his mouth. On 16 August, in addition to a headache, Mr Walker reported an upset stomach and numbness in his tongue. By 19 August the reported symptoms were numbness in the tongue and lips. The specialist medical evidence suggested possible causes for some symptoms but could not provide an explanation for the varied and changing symptoms Mr Walker said he experienced. In particular, the pins and needles and numbness remained unexplained, albeit Dr Chin suggested psychological factors.
The onus rests with Mr Walker to establish on the balance of probabilities that he suffered a personal injury that arose out of or in the course of his employment and employment was a significant contributing factor to the injury. The specialist medical evidence does not establish on the balance of probabilities that the ingestion of contaminated water caused any of Mr Walker's symptoms or aggravated his pre‑existing IBS.
Mr Walker has a long history of gastrointestinal complaints, was diagnosed with IBS in 1998 and has previously reported burning diarrhoea. In my view, given the delayed onset of gastrointestinal symptoms, I find he was troubled by a recurrent bout of those gastrointestinal complaints in August 2013, unrelated to the ingestion of water on 20 July 2013. To be clear, the Commission is satisfied that the gastrointestinal complaints did not arise out of or in the course of his employment and employment was not a significant contributing factor.
Psychiatric Injury
The parties and the Employer agree that Mr Walker sustained a psychiatric injury. It was diagnosed by Dr Guirguis on 19 August 2013 as "Acute traumatic stress disorder". Dr Guirguis issued a workers' compensation medical certificate to that effect that day. On 23 September 2013, Dr Hugh Daniel, Consultant Psychiatrist, provided a written diagnosis for Mr Walker of Adjustment Disorder with Depressed Mood.
The issues to be determined in relation to this injury are whether this injury was secondary to the physical injury; whether it was employment related and whether it is withdrawn because the injury arose out of or in the course of reasonable management action taken in a reasonable way.
Is the psychiatric injury a discrete injury?: The Appellant submits that the psychiatric injury sustained by Mr Walker is a separate and stand-alone injury because immediately after ingesting the water Mr Walker developed psychiatric symptoms. Shortly after, Mr Walker reported his psychiatric symptoms to Dr Guirguis.
Where a physical injury attributable to employment cannot be established, it follows that any psychiatric injury cannot be compensable on the basis that it was secondary to the work-related injury.[3] However, a psychiatric injury may be compensable where real events in a workplace impact on a claimant's psyche because of a disordered mind.[4]
[3] Q-COMP AND Ronald Wayne Riggs (2005) 179 QGIG 251.
[4] Leigh Sheridan v Q-COMP (2009) 191 QGIG 13,17.
The evidence of Dr Hugh Daniel, to whom Mr Walker was referred by WorkCover, was that it was reasonable to assume that in the absence of physical symptoms Mr Walker would not have developed a psychiatric injury. This evidence supports the conclusion that the psychiatric injury was secondary to the physical injury and is thus not compensable. However, and despite the issue not being raised by the Appellant, I propose to consider whether this is a case where a disordered mind formed a flawed perception of real events. It was raised in the Employer's submissions and the Regulator has also addressed the issue of Mr Walker's condition.
How did the injury arise? The Appellant's case is that Mr Walker's injury arose as a result of ingesting contaminated water.
The Regulator and the Employer submit that Mr Walker's psychiatric injury did not arise out of or in the course of his employment and that employment was not a significant contributing factor to the injury. The Employer submits Mr Walker did not have a disordered mind for a range of reasons including the delayed onset of his symptoms, the fact that Mr Walker remained at work without resort to a medical practitioner and his first report to a medical practitioner was that he was asymptomatic. The Regulator submits it was Mr Walker's own condition that was the significant contributing factor causing the psychiatric injury. He had an irrational belief he had been poisoned and was going to die.
Dr Guirguis found the cause of Mr Walker's Acute Traumatic Stress Disorder was his ingestion of chemicals at work. It was his opinion that the ingestion of chemicals in the drinking water had been a constant worry to Mr Walker from 7 August 2013 as no one could tell him what he had ingested despite his development of physical symptoms. Routine tests ordered by Dr Guirguis on 31 July 2013 had returned normal results for Mr Walker's blood, liver and kidney function. A mouth examination also did not reveal any abnormalities. Dr Guirguis was of the view that his psychiatric symptoms would improve if he could diagnose him and treat him for the health problem he was suffering. Mr Walker did not disclose to Dr Guirguis that on 8 August 2103 he had obtained a water sample, albeit not a sample of the water he had ingested on 20 July 2013, and that it was being sent for analysis.
Mr Walker presented with stress on 16 August 2013. In that consultation Dr Guirguis recorded "poor sleep" and "feeling very stressed". Mr Walker said that at that time he was feeling "let down" and "like he was going to die". Dr Guirguis wrote to the Mill asking for a list of chemicals in the water Mr Walker had ingested. An analysis was received some time later but was not specific to the water ingested on 20 July 2013. Both Mr Walker and Dr Guirguis remain unaware of the composition of the water.
The notes of 19 August 2013 record similar symptoms. In his evidence Dr Guirguis said Mr Walker presented at that consultation as very dishevelled; his eyes were very red and he was quite distressed and very angry. Mr Walker said he was upset because no one could tell him what he had ingested.
In his evidence Dr Guirguis said there was a marked change between 16 and 19 August 2013. Mr Walker was constantly worried from the ingestion of the water and, although Mr Walker's symptoms took time to develop, the fact that he was not improving and there was no explanation for his symptoms were the reasons he was getting worried. On 19 August 2013 Mr Walker became quite teary and his mood was quite low. As a result Dr Guirguis issued the first workers' compensation medical certificate showing mental health issues.
[100]Dr Daniel saw Mr Walker on 18 September 2013. In his report to WorkCover dated 23 September 2013, Dr Daniel summarised the history as related by Mr Walker:
"He has become depressed and distressed about what is going on with his body and feels frustrated that his employer has not taken further steps to ensure his safety."
[101]Dr Daniel believed Mr Walker would have started to worry about the effects of the water on his health when the physical symptoms arose, i.e., three to five days after the ingestion of the water. His psychological symptoms got progressively worse so he was worried enough by 7 August to report to his General Practitioner.
[102]He described the "relationship of the current work related diagnosis to the stated mechanism of injury" as:
"The adjustment disorder is directly related to his toxic exposure, the development of the subsequent physical symptoms and his sense that his toxic exposure has not been well managed by his employer. In addition he has some family stressors related to the demands of solo parenthood."
[103]Under cross-examination Dr Daniel said Mr Walker was concerned initially that he had ingested something not fit for human consumption but when he developed physical symptoms, the matter developed into a more serious concern. Dr Daniel's opinion suffers from Mr Walker's misreporting of the development of his symptoms. For example, Dr Daniel records Mr Walker as having told him:
"Several days later he started to develop nausea and unusual numbness at the back of his tongue and the front of his lip. He also had a burning sensation and pins and needles in his tongue and later developed diarrhoea. He started to wonder if he had been poisoned. He went to his doctor."
[104]The earlier part of this decision establishes that Mr Walker first reported numbness in his tongue to Dr Guirguis on 16 August and numbness in his lip and tongue on 19 August 2013. The Commission rejected Mr Walker's evidence that he reported pins and needles in his tongue to Dr Currie on 28 July 2013.
[105]The evidence of Dr Guirguis and Dr Daniel that the ingestion of chemicals was a constant worry to Mr Walker is not borne out by the evidence and Mr Walker's actions. Mr Walker gave evidence that he was upset when he returned to the job on 20 July, felt unwell on his return to work and got sicker and sicker. Mr Walker told Graham Butland "one Saturday" about the overpowering chemical taste in his mouth. He first sought medical treatment on 31 July 2013. Although Mr Watkins said Mr Walker was not his usual self over the period from 20 July to his decompensation, the time line is unhelpful in understanding when this change commenced. In his evidence Mr Walker said a few times that he thought he was going to die.
[106]Objectively, the evidence establishes that Mr Walker returned to work and continued working. He enjoyed one day, if not two days immediately following the ingestion, at the Mossman Show. He did not report any ill health or concerns to anyone at the Mill until "one Saturday". It is not clear to which Saturday Mr Walker is referring. Mr Walker told Dr Currie on 28 July that he was asymptomatic and first sought medical treatment on 31 July 2013.
[107]By 7 August 2013 blood and other tests had been administered and Mr Walker was informed of the normal results. He had developed other symptoms, including burning diarrhoea. I am prepared to accept that at this point Mr Walker began to attribute his developing and changing symptoms to ingestion of the contaminated water especially when it was not possible for an analysis of the composition of the water on the day to be provided to him. However, I am of the view that this was attributable to an irrational belief rather than the result of the impact on his psyche of a flawed perception of events attributable to a disordered mind. I have reached that view in light of the period of not reporting any symptoms either at work or to a medical practitioner and the delayed onset of specific symptoms after receiving normal test results.
[108]In the event I am wrong about that conclusion and it is accepted that Mr Walker's psychiatric condition developed from a flawed perception about chemicals in the water he had drunk on 20 July 2013, then I consider the source of his concern was management's inability to inform him of the chemicals in the water. This view has been reached in light of the evidence of Dr Guirguis that Mr Walker was concerned because no one could tell him what was in the water. Dr Daniel also said under cross‑examination that Mr Walker was concerned about ingesting water that was not fit for human consumption. In that scenario his employment would have been a significant contributing factor and consideration must be given to whether the disorder arose out of or in the course of reasonable management action taken in a reasonable way.
[109]Was the management action reasonable and taken reasonably?: The Regulator and the Employer submit the injury is causally traceable to reasonable management action taken in a reasonable way. Counsel for the Appellant disavows the relevance of consideration of management action arguing that Mr Walker has not complained about any actions of his Employer.
[110]Mr Walker's main complaint is that no one can tell him what was in the water he ingested on 20 July 2013.An examination of his complaint begins with the management action taken that day. The evidence from Mr Irvine and Mr Jensen was that when the problem with the water was identified, Mr Irvine and others took immediate steps to rectify it and to ensure the problem would not recur.
[111]There is a conflict in the evidence between Mr Irvine and Mr Walker over the completion of the Incident Report Form. Mr Irvine said he completed an Incident Report in the presence of Mr Walker on 20 July 2013. Mr Walker said he did not sign it until 30 July 2013. While that Report details the mechanism of the incident, "non-applicable" is notated in relation to the questions concerning injury type, first aid or other treatment given to Mr Walker and whether he was referred for medical treatment. Mr Irvine said that he spent about half an hour with Mr Walker while the Incident Report was being completed.
[112]Haydn Slattery, the then Site Manager, was not on site at the Mill on Saturday 20 July 2013. He learned about the incident on return to work on 22 July 213. He was shown the Incident Report Form and informed about the incident. Mr Slattery enquired whether Mr Walker had been taken to hospital or sought medical treatment and was advised that Mr Walker had not needed to see a doctor immediately.
[113]Mr Walker was critical of both the means by which the Incident Report Form was completed and some of its contents. In particular, Mr Walker said he was not present when the Form was completed and he disagreed with the "systems factors" as described and complained about not being given a copy of the document. I accept the evidence of Mr Irvine that the Form was completed that day as he was also able to comment on Mr Walker's hands.
[114]Despite Mr Walker's complaints about the "systems factors", he did not complain about not being sent for medical treatment on the day. He did not however disagree with the notations on the Form which referred to injury type and whether treatment was sought or given.
[115]The Commission considers that prudent management would have ensured a sample of the water was taken immediately following Mr Walker's ingestion. Although the Employer submits that a sample taken immediately after the ingestion would not be the same as that ingested because it initially ran clear, it would have been reasonably similar. However, I do not make the finding that management acted unreasonably in not taking a sample. Mr Walker did not report or show any symptoms and returned to work and completed his shift. For these reasons and given Mr Walker did not express a desire for medical treatment, the Commission does not consider management acted unreasonably in not sending him for a medical examination.
[116]Dr Guirguis noticed a marked change between Mr Walker's presentations on 16 and 19 August 2013. The only event that occurred between these three days of which there has been evidence is the meeting between Mr Walker, Mr Slattery and Mr Treasure on 16 August 2013.
[117]This meeting occurred after Mr Walker had consulted Dr Guirguis at 8.15 am and where Dr Guirguis wrote a letter to the Employer about obtaining a list of chemicals in the pond water ingested by Mr Walker. The evidence is that Mr Walker initiated the meeting. Mr Slattery agreed to meet. Mr Walker was upset and agitated. He expressed a range of concerns including an inability to seek medical attention. Just as Mr Walker had not told Dr Guirguis that he had obtained a water sample on 8 August 2013, he did not tell Mr Slattery and Mr Treasure that he had been consulting Dr Guirguis, including as recently as that morning when he obtained a medical certificate. Mr Slattery and Mr Treasure both believed that Mr Walker left the meeting feeling happier and was content with the course of action decided upon.
[118]In my view, management acted reasonably in dealing with Mr Walker that day. They listened to his concerns and initiated remedial action. An offer was also made to obtain specialist medical opinion if Mr Walker required that assistance. It is difficult to know what caused the deterioration in Mr Walker's mental health over the three days unless there were unrelated events that were not disclosed in evidence or, as the Employer speculated, that Mr Walker did not want the Employer to discover he had been seeking medical treatment from the General Practitioner with whom the Employer was making an appointment on Monday.
[119]Conclusion - Management Action: For the reasons outlined the Commission finds that Mr Walker's psychiatric injury is secondary to the physical injury and is not compensable. Further, that the injury was not as a result of a disordered mind forming an exaggerated perception of objectively identifiable dangers. In the event I am wrong about that, then the injury arose out of or in the course of reasonable management action taken in a reasonable way. As a result of that finding, Mr Walker's injury is withdrawn from the operation of s 32(1).
Orders
[120]The Commission makes the following orders:
1. The appeal is dismissed in respect of the claim for the physical and psychiatric injuries.
2. The decision of the Regulator is confirmed.
3. The Appellant is to pay the Regulator's costs of and incidental to the appeal.
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