Watt v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 50
•7 March 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Watt v Simon Blackwood (Workers' Compensation | ||||||
| Regulator) [2014] QIRC 050 | |||||||
| PARTIES: | Watt, Heather | ||||||
| (appellant) | |||||||
| v | |||||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||||
| (respondent) | |||||||
| CASE NO: | WC/2012/367 | ||||||
| PROCEEDING: | Appeal to Industrial Commission against a decision | ||||||
| of the Regulator | |||||||
| DELIVERED ON: | 7 March 2014 | ||||||
| HEARING DATES: | 20-22 May 2013 | ||||||
| MEMBER: | Deputy President O'Connor | ||||||
ORDERS: |
| ||||||
CATCHWORDS: | WORKERS' COMPENSATION - MEANING OF "INJURY" - ORTHPAEDIC INJURY - Where the appellant was employed as a personal carer at TriCare Stafford Heights Pty Ltd - Where the appellant sought workers' compensation for a personal injury described as "numbness left side and | ||||||
| buttock MRI3 bulging discs" – Whether that | |||||||
| personal injury arose out of, or in the course of, employment - Whether employment was a significant contributing factor - Where the appellant argued that her injury was caused by continual pressure and bending of her back whilst performing physical tasks as part of her duties as a carer - Where the appellant's medical records revealed a history of back pain predating the commencement of her | |||||||
| employment with TriCare - Where the | |||||||
| preponderance of expert medical evidence indicated that the appellant's injury was a degenerative, age- related one - Whether there was any causal relationship between the appellant's injury and her employment | |||||||
| CASES: | Workers' Compensation and Rehabilitation Act 2003 | ||||||
| (Qld), s 32 Workers' Compensation Act 1926 (NSW) (repealed) | |||||||
| Carman v Q-COMP (2007) 186 QGIG 512 Chattin v WorkCover Queensland (1999) 161 QGIG 531 | |||||||
| Croning v Workers' Compensation Board of | |||||||
| Queensland (1997) 156 QGIG 100 Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519 Obstoj v Van de Loos (Unreported, Supreme Court of Queensland, Connolly J, 13 April 1987). Qantas Airways Ltd v Q-COMP (2009) 191 QGIG 115 Q-COMP v Green (2008) 189 QGIG 747 | |||||||
| Rossmuller v Q-COMP (C/2009/36) - Decision < | |||||||
| APPEARANCES: | Ms L M Willson, instructed by Shine Lawyers, for the appellant. Mr A B Johnson for the respondent. Mr P W Telford for TriCare Stafford Heights Pty | ||||||
| Ltd. |
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(3) Injury includes the following—
(a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; (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 personalinjury or disease because of the aggravation;…"
Nature of appeal and onus of proof
[4] As with any appeal to the Commission against a decision of the Regulator, the
nature of the appeal is by way of hearing de novo. To establish her claim, the
appellant must satisfy the Commission, on the balance of probabilities, that her
1
claim is one for acceptance.
[5] The respondent conceded that, at the relevant time, the appellant was a worker.
The appellant's case
[6] The appellant's case is that she suffers from "numbness left side and buttock MRI 3 bulging discs" which constitutes a "personal injury" for the purposes of s 32(1) of the Act. In the alternative, the "numbness left side and buttock MRI 3 bulging discs" is an "aggravation" which, by virtue of s 32(3), becomes an "injury" within the meaning of s 32.
Background
[7] The appellant worked as a personal carer at TriCare Stafford Heights Pty Ltd ("TriCare") between 19 November 2007 and 19 December 2011.
[8] On 25 April 2012, the appellant completed an "Accident/Incident Notification
Report" in which she identified the nature of her injury as "3 bulging discs, buttock
numbness" in her "back and left side buttock", the location of the incident where the
injury occurred as a "combination of A wing, B wing and Hostel", and the witnesses
to the incident as "all team members that [she] worked with." The "incident" was
described as one which occurred over a period time - namely, from 30 November
2011 to "current" - and was described in the following terms: "No specific episode,
continual bending, lifting aged care manual work." The "continual strenuous
pressure on [her] back" resulting from that continual bending, lifting and manual
2
work, she claimed, "has caused 3 bulging discs."
[9] On 2 May 2012, the appellant completed an application for compensation under s
132 of the Act, which was marked as "received" by her employer's self-insurer the
next day. She described the nature of the injury in similar terms to those she used in
her earlier incident notification report: "Numbness left side and buttock MRI 3
bulging discs." Again, she claimed that the injury occurred in "A wing, B wing,
Hostel" and, without identifying any specific incident, that it was caused by
"constant bending lifting, support unsteady residents to sit, stand, residents with
3
dementia resisting care."
The evidence
[10] The appellant, in general terms, gave evidence that her tasks as a carer with TriCare included feeding, showering, dressing and toileting residents. She said that some residents can be difficult to handle and could become aggressive. Lifting patients was by means of a hoist, which required carers to hold the patients and place a strap around their body to secure them. Most of the appellant's working life at TriCare was in the hostel which also involved some laundry and cleaning. However, she also occasionally worked in A and B wing, which were both high care units.
[11] The appellant's case is that she developed her back condition over a period of time commencing either some time in October or late November 2011. In her evidence- in-chief, the appellant stated:
"So, do you remember when you, when you first went to the doctor and complained about pain, when that was?---Yes, that was like the 29th of November of 2011.
Okay?---29th or the 30th.
Okay?---Yeah, I was in really bad pain.
4
And who did you see?---Dr Rath."
[12] The medical records before the Commission, however, do not support the appellant's contention that her back condition first developed in October or November 2011.
[13] The appellant consulted Dr Peter Gibling, her general practitioner, on 3 April 2002.
The surgery consultation record for that day notes a history of right elbow pain, neck
5
pain and low back pain. She saw another general practitioner on 17 November 6 2003: Dr William Rath. Dr Rath referred her to Mr Cameron Lawson, a 7
physiotherapist, who recorded a long history of lower back pain.
[14] On 9 March 2011 the appellant sought treatment for acute lower back pain and was referred for an x-ray of her lumbar spine.
[15] The appellant gave evidence that in March 2011 she was admitted to the Emergency Department of the Redcliffe Hospital following a period of gastroenteritis and vomiting. In cross-examination by Counsel for TriCare the appellant said:
"All right. You remember, though, don't you, a period of ten days during which you suffered from acute back pain and sciatica in March 2011?---No, I didn't suffer from back pain. I had gastro. I was vomiting. A week later - I couldn't go to work because I'm not allowed to go to work with gastro.
Mmm?---Then my back went into spasms on the Wednesday. That was the
only time I first experienced the back pain and on Friday I called the
8
ambulance."
[16] On 11 March 2011 Dr Robert Smith issued a non-workers' compensation medical
certificate stating that the appellant had been admitted to the "Redcliffe (Emergency)
Hospital" that day, that she was suffering from "acute back pain and sciatica" and
was totally incapacitated for work, and that she would be unfit for duty up to and
9
including 20 March 2011.
[17] In addition to the medical records showing that the appellant had a history of back pain commencing well before the commencement of her employment with TriCare in November 2007, the preponderance of expert medical evidence before the Commission supports a conclusion that her back condition was a degenerative one and that her employment with TriCare was not a significant contributing factor to it.
[18] In his report of 14 May 2012, Dr Geoff Harding, a general practitioner with a special interest in musculoskeletal medicine, recorded the following history:
"On reflection she [the appellant] told me that the pain had been coming on
over the past few years. She did say that she had had an episode of vomiting in
March of that year however because of back pain. She had been taken to
hospital with that episode. She had been seen previously by an osteopath on
two occasions and he said her back was 'stiff' and didn't move properly. She
had also been treated with physiotherapy on and off. She was told by the
physiotherapist that she had 'poor posture' and that was the likely cause of
10
some back pain."
[19] In evidence-in-chief, Dr Harding agreed that, given the appellant's history, it was
more probable than not that the vomiting episode in March 2011 caused the disc
11
protrusion.
[20] Dr John Morris, an orthopaedic surgeon, in his report dated 23 May 2012, did not accept that there was a causal connection between the appellant's condition and her employment:
"In my opinion, the cause of Ms Watt's current condition is a natural ageing
process. There is no involvement of her employment with TriCare. I do not believe that her work activities are a significant contributing factor to the
12
condition or have caused an aggravation of the condition."
[21] He went on to conclude:
"I am not of the opinion that Ms Watt sustained an injury at work. There was
no evidence to suggest that any work activity has produced the pain or
restricted movements. In fact, her first problem occurred after she vomited,
13
which was not a work related activity."
[22] Dr Morris' report also notes that the appellant has difficulty with a number of non-
work-related tasks, including putting on her pants, ironing, standing, and driving for
14
short distances. These difficulties outside of work are referred to later in his report in order to illustrate the lack of any relationship between her work and her condition:
"As with activities at home, work activities can produce exacerbations of pain. However, since most of Ms Watt's symptoms have been present since she
stopped work on 20 November 2011, there is not really a strong relationship
15
even as far as exacerbation goes."
[23] In a supplementary medico-legal report dated 9 May 2013, issued at the request of the appellant's solicitors, the consultant orthopaedic surgeon and certified independent medical examiner Dr Bruce Martin opined:
"These changes are relatively longstanding, and generally pre-date the
commencement of Ms Watts' employment as a personal carer at a TriCare
establishment. Onset of her symptoms during 2011 is coincidental with her
employment, and I do not consider that there is a cause and effect relationship
between her back condition, including the disc protrusion, and her
16
employment with TriCare."
[24] In cross-examination, Dr Martin accepted as probable the proposition that the appellant's disc protrusion had its genesis in the vomiting incident of March 2011.
[25] Even Dr Scott Campbell, a neurosurgeon upon whose evidence the appellant relies, conceded in cross-examination by Counsel for the respondent that the vomiting episode in March 2011 could be the cause for the disc protrusion:
"And if it was the fact that that proved to be correct - and that's a matter for the Commission, of course - that lower back pain was on and off for years, that there was some leg pain for the first time at or about that 12th of March 2011 consult with Mr Lawson, would you agree with me that it's more likely than
not that the acute event of vomiting in March of 2011 was more likely the – a – the cause for the protrusion? You couldn't discount that?---Well, that is
possible, and if that is, in fact, when the left leg pain came on, then that would
be – that could be a source for the disc protrusion to the left. Yes."[17]
[17]
[26] In answer to a question posed by Counsel for TriCare, Dr Campbell said:
"And I'd suggest to you also that the chances of someone sustaining a disc protrusion while assisting an elderly resident in an aged care facility
showering is also low?---Yes, but that's not how I've – I've – I've worked
backwards, rather than forwards, so what I've said is the patient has a disc
protrusion, what are likely – what now become the likely causes?"[18]
[18]
[27] Dr Campbell acknowledged in his evidence that he had not been given the
appellant's entire medical history, in particular, her long history of pre-existing back
pain commencing in 2002 and the notes of the physiotherapist which recorded lower
back pain for 24 years "since kids". This history was, in Dr Campbell's view,
19
"additional information of significance".
[28] It is apparent from the evidence given by Dr Campbell in cross-examination that his
approach to determining whether or not the appellant had a work-related injury was
to work backwards from the identified injury and then to see what work activities
may have caused it. When Counsel for TriCare asked, "So is it fair to say that these
[referring to the physical tasks which the appellant performed in her duties as a
carer] are only possible causes of Ms Watt's disc protrusion, if you had to attribute
20
them to her employment?" Dr Campbell answered, "Yes." In making his
assessment Dr Campbell relied on his "own understanding and appreciation of tasks
that would ordinarily be involved in an aged care facility by a personal carer" but
21
without being "told of any particular tasks subjectively relevant to Ms Watt".
[29] The evidence of Dr Harding and Dr Morris does not support the appellant's contention that her injury arose out of or in the course of her employment with TriCare, nor does the medical evidence which she herself adduced before the Commission.
[30] I am of the view that the totality of the evidence does not support a conclusion that the appellant's injury was work-related. In support of that conclusion I refer to the following further evidence:
The appellant obtained from Dr Rath a non-workers' compensation medical certificate for "acute disc disease lumbar sacral region" on 5 December 2011; The appellant also obtained from Dr Mark Zischke, another general practitioner, a non-workers' compensation medical certificate for an acute disc disease lumbar sacral region on 13 and 22 December 2001 and 6 January 2012;
It was not until 2 May 2012 that the appellant received her first workers' compensation medical certificate, some five months after the appellant had left her employment with TriCare; Dr Harding gave evidence that during his consultation with the appellant she advised him of her belief that she had hurt her back whilst lifting her grandchildren. His evidence also revealed that he was not aware that the appellant had first consulted Dr Gibling on 3 April 2002, nor that she had been seeking physiotherapy from Mr Lawson since 2003; Mr Lawson's clinical notes for the appellant from 19 November 2003
record "LBP (lower back pain) – last 24 years (since kids)";
Dr Harding was further advised by the appellant that she had a long history
of back pain; The appellant did not report any work incident or make any complaint, and did not suggest a connection between her work and her back injury until she filed the application for compensation with TriCare's self-insurer on 2 May 2012, some 5 months after she left TriCare on 19 December 2011; and The "Manager's Report Form" dated 2 May 2012 contains the following comment by Ms Carol McKinnon, "Facility Manager" at TriCare Stafford Heights: "Heather did not receive an injury. However when she first had time
off we informed her to fill out a form for ACES and she said she
didn't want to. She tried to come back to work but her back was too
sore so had further time off and again at this stage was asked about
22
ACES which she refused."
The authorities and their application to the present case
[31] The appellant bears the onus of establishing that her back injury arose out of or in the course of employment and that employment was a significant contributing factor.
[32] The meaning of the phrase "if the employment is a significant contributing factor to
the injury" as it appeared in the Workers' Compensation Act 1926 (NSW) was
23
considered by the High Court in Federal Broom Co Pty Ltd v Semlitch. Mr Justice Kitto said: "Where it is possible to identify as a contributing factor to the aggravation,
acceleration, exacerbation or deterioration of the disease, some incident or
state of affairs to which the worker was exposed in the performance of his
duties and to which he would not otherwise have been exposed, I see no
misuse of English in condensing the statement of the fact by saying simply
that the employment was a contributing factor to the aggravation etc. It is in
24
that sense that I should understand the language of the definition."
[33] Mr Justice Windeyer turned to a "more difficult question":
"[W]as this aggravation or deterioration contributed to by her employment?
This requirement of the Act is not satisfied by showing only that a worker
suffering from some disease would or might have suffered less severely if he
had not been employed at all. When the Act speaks of 'the employment' as a
contributing factor it refers not to the fact of being employed, but to what the
worker in fact does in his employment. The contributing factor must in my
opinion be either some event or occurrence in the course of the employment or
some characteristic of the work performed or the conditions in which it was
25
performed."
[34] The term "employment" in s 32 of the Act refers to what the appellant actually did in her employment and not to the fact of being employed.
[35] In Croning v Workers' Compensation Board of Queensland,[26] de Jersey P (as his Honour then was) held that the employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs"
[26]
[36] In Newberry v Suncorp Metway Insurance Ltd[27] Keane JA, with whom de Jersey CJ and Muir J agreed, said:
[27]
"The requirement of s 32 of the WCRA that the employment significantly
contribute to the injury is apt to require that the exigencies of the employment
must contribute in some significant way to the occurrence of the injury which
the claimant asserts was caused by the breach of duty of the person (not the
28
employer) against whom the claim is made."
[37] His Honour later observed:
"[T]he fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been a 'significant contributing factor to the injury'. To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases 'arising out of employment' or 'in the course of employment'.
Further, there is no warrant in the language of s 32 of the WCRA for reading
the words 'if the employment is a significant contributing factor to the injury'
as lessening the stringency of the requirement that the injury 'arise out of the
employment', as was suggested in the course of argument on the appeal. It is
clear, as a matter of language, that the words 'if the employment is a
significant contributing factor to the injury' are intended to be a requirement of
connection between employment and injury additional to each of the
requirements that the injury occur in the course of employment or arising out
of employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the
29
former."
[38] In Carman v Q-COMP,[30] President Hall said:
"It must be remembered that Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority. The worker who was successful on the point of law about the content of 'aggravation' was unsuccessful on the facts. Pleming v Workers' Compensation Board of Queensland, ibid, does not decide that a worker afflicted by a degenerative back suffers an injury if the back becomes painful at work. Neither does Pleming, op. cit., establish that a worker with a degenerative back suffers an "injury" if the work is a cause of the onset or intensification of pain. Pleming, op. cit. establishes that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain."
[30]
[39] In Q-COMP v Green,[31] Hall P observed that in interpreting s 32 of the Act
[31]
"the critical phrase is 'a significant contributing factor'. The phrase cannot be
equated with 'a significant cause'. If the phrase had that meaning, every injury
32
falling within the phrase would also arise out of the employment."
[40] In Qantas Airways Ltd v Q-COMP[33] Hall P said:
[33]
"It is important to bear in mind also that the adjective 'significant' qualifies the expression 'contributing factor'. The notion of 'contribution' in itself requires some linkage between the employment and the injury: compare Favelle Mort Limited v Murray (1975-1976) 133 CLR 580. In those circumstances, it seems to me that it would be wrong to place the meaning of 'significant contributing factor' so far towards the lower end of the spectrum that it carried the meaning of 'more than ephemeral or nominal'. Without treating s 14B of the Acts Interpretation Act 1954 as a directive to construe a Minister's Second Reading Speech rather than of the statute, I take the liberty of observing that 'strong' is not an appropriate word to use to indicate the positioning of the phrase 'significant contributing factor' within the spectrum of meaning. With hindsight, the words adopted in Q-Comp v Green (2008) 189 QGIG 747, viz., 'important' and 'of consequence', seem to me to be equally apposite. I should say also that I also doubt that if 'significant' carries the meaning of 'large', 'great', 'weighty' or 'substantial', the amendment would have achieved the objective referred to by the Minister of ameliorating the difficulties which the expression 'the major significant contributing factor' had caused in cases about the aggravation of pre-existing conditions.
On balance, I am not prepared to accept the submission that 'significant' bears
the meaning of 'large', 'great' 'weighty' or 'substantial'. I regret that I am unable
to be more precise than fixing the meaning of 'significant' as towards the lower
end but not at the base of the spectrum, and (to the extent that adjectives may
be used without supplanting the statutory language) using words such as
'strong', 'important' or 'of consequence'. However the task is to apply a
34
statutory test. The task is not to conceptualise an idea."
[41] I accept that the appellant had a degenerative back condition of long standing and that it is more probable than not that the vomiting episode on 11 March 2011 was the cause of her ruptured disc.
[42] The evidence does not support a conclusion by the Commission that the appellant's back injury arose out of or in the course of employment and employment was a significant contributing factor.
[43] In Chattin v WorkCover Queensland,[35] Williams P adopted the reasoning of
[35]
36
Connolly J in Obstoj v Van de Loos where his Honour said: "The function of a court of law in a situation such as this is to determine
whether, for whatever reason, it is more probably than not that there is a causal
37
relationship between the accident and the plaintiff's post-accident condition."
Conclusion and orders
[44] On consideration of the totality of the evidence before the Commission, I am not satisfied that the appellant has established a causal relationship between her employment with TriCare and her back condition. Accordingly, I am not satisfied that she has suffered an "injury" within the meaning of s 32 of the Act.
[45] The appellant has not discharged the onus of proving, on the balance of probabilities, that the respondent's decision should be set aside, and that her claim is one for acceptance.
[46] Accordingly, I make the following orders:
1. That the appeal be dismissed;
2. That the decision of the respondent dated 6 September 2012 be confirmed; and
3. That the appellant pay the respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
[1] This is an appeal by Ms Heather Watt ("the appellant") pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the Act") against the decision of the Regulator's Review Unit ("the respondent") dated 6 September 2012. That decision confirmed the earlier decision of the appellant's employer's self- insurer dated 30 May 2012 to reject her application for compensation in respect of an injury described as "numbness left side and buttock MRI3 bulging discs".
Issue for determination
[2] The issue for determination in this appeal is whether the appellant sustained an "injury" within the meaning of that term in s 32 of the Act.
[3] Section 32 relevantly provides:
"32 Meaning of injury
1
Rossmuller v Q-COMP (C/2009/36) - Decision < [2].
2
Exhibit 2.
3
Exhibit 1.
4
T1-7.
5
Exhibit 13.
6
Ibid.
7
Exhibit 16.
8
T1-27.
9
Exhibit 5.
10
Exhibit 17.
11
T3-24–5.
12
Exhibit 15, p 9.
13
Ibid, p 10.
14
Ibid, p 6.
15
Ibid, p 9–10.
16
Exhibit 12, "Supplementary Medico-legal Report" dated 9 May 2013, p 2.
T1-45–6.
Ibid, 48–9.
19
Ibid, 45.
20
Ibid, 49.
21
Ibid.
22
Exhibit 1
23
(1964) 110 CLR 626.
24
Ibid, 632–3.
25
Ibid, 641.
(1997) 156 QGIG 100.
[2006] 1 Qd R 519.
28
Ibid, 529.
29
Ibid, 532–3.
(2007) 186 QGIG 512.
(2008) 189 QGIG 747.
32
Ibid, 750.
(2009) 191 QGIG 115.
34
Ibid, 118–9.
(1999) 161 QGIG 531.
36
(Unreported, Supreme Court of Queensland, Connolly J, 13 April 1987).
37
Chattin v WorkCover Queensland (1999) 161 QGIG 531, 532, quoting Obstoj v Van de Loos (Unreported,
Supreme Court of Queensland, Connolly J, 13 April 1987).
1
1
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