Wesley v Workers' Compensation Regulator - [2019] QIRC 126

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Wesley v Workers' Compensation Regulator [2019] QIRC 126
PARTIES:	Wesley, Gordon (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2018/65
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:	11 September 2019
HEARING DATES:	25 February 2019 12 April 2019 8 May 2019
HEARD AT:	Brisbane
MEMBER:	Knight IC
ORDERS:	1. The appeal is dismissed. 2. The decision of the Respondent dated 13 March 2018 is affirmed. 3. The Appellant is to pay the Respondent's costs of and incidental to this appeal.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION – Whether the Appellant's psychological injury is secondary to an accepted physical injury – questions around multi-factorial causation – whether physical workplace injury and associated pain and stress triggered increase in drug use and onset of psychiatric symptoms – nature of psychological injury - was employment the major significant contributing factor to the psychological disorder.
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003
CASES:	Pacific Coal Pty Ltd v Gaudy [1996] QCA 525 Blackwood v Mana [2014] ICQ 027
APPEARANCES:	Dr G Cross, Counsel, instructed by Everingham Lawyers, for the Appellant. Ms L Willson, Counsel, directly instructed by the Workers' Compensation Regulator, the Respondent.

Decision

Mr Wesley Gordon ("the Appellant") appeals a decision of the Workers' Compensation Regulator ("the Respondent") dated 13 March 2018, which confirmed a decision of Workcover Queensland (Workcover) to reject the Appellant’s claim for compensation under s 32 of the Workers Compensation and Rehabilitation Act 2003 ("the Act)", in respect of a psychological injury claimed to have developed as a secondary injury. The appeal is made under s 550 of the Act.

Witnesses

For the Appellant:

·Mr Gordon Wesley, Appellant;
·Dr Christopher Harvey, General Practitioner;
·Dr Lawrence Khoo, General Practitioner;
·Dr Karen Chau, Psychiatrist.

For the Respondent:

·Dr Ken Arthur, Psychiatrist.

Background & Appeal Details

Mr Wesley is 40 years of age. During the proceedings the Commission was told he was abused by his step-father as a child and that he eventually left home to live with friends. He was educated to Grade 8, later completing Year 10 while in prison.
At the time of the proceedings he told the Commission he was separated from his partner, with whom he has four children, and was residing in Far North Queensland with his mother.
It is not in contention the Appellant has a history of convictions associated with driving under the influence. He told the Commission he was imprisoned for various periods after being charged with drink driving on sixteen occasions, serving a total of two and a half years in jail.
In addition to his drink driving offences and experiencing periods of excessive consumption of alcohol during his life, the Appellant told the Commission he has a long-standing history of amphetamine and ice use, which commenced around the age of fourteen.
In this matter, there is some disagreement about the extent of the Appellant's consumption of the drug ice at or around the time he sustained his physical injury, in…

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.

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Details

Case: [2019] QIRC 126
Decision Date: 11 September 2019

CaseChat Overview and Summary

In the matter of Wesley v Workers' Compensation Regulator, the appellant sought to appeal a decision made by the Workers' Compensation Regulator concerning the denial of a claim for compensation for a psychological injury sustained in the course of employment. The primary dispute centred around whether the appellant's psychological injury was secondary to an accepted physical injury and the extent to which employment was a significant contributing factor to the psychological disorder.

The legal issues before the court involved determining the causative link between the appellant's workplace accident and his psychological injury. The court had to assess whether the physical injury and associated pain and stress triggered an increase in drug use and the onset of psychiatric symptoms. The court also needed to evaluate the nature of the psychological injury and whether it was primarily caused by employment factors.

The court reasoned that the inconsistencies in the appellant's accounts of his drug use and personal circumstances, both before and after the injury, undermined the reliability of his evidence. The court found that the Redcliffe Hospital notes provided a more reliable account of the appellant's drug consumption prior to the injury. Given these inconsistencies and the appellant's history of anti-social disorder, the court concluded that the appellant's evidence should be treated with caution. Consequently, the appeal was dismissed, and the decision of the Workers' Compensation Regulator was affirmed. The appellant was ordered to pay the respondent's costs associated with the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The decision of the Respondent dated 13 March 2018 is affirmed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Appellant maintains that a proper consideration of the evidence indicates the workplace accident on 15 March 2016 had a profound detrimental effect on the Appellant’s psychological / psychiatric state which was not in existence before 15 March 2016.Consideration and Conclusions In Blackwood v Mana,[37] President Martin highlighted the importance of the accuracy and quality of the medical evidence relied on to support any claim, noting: "it is an un-contestable requirement that, for an expert opinion to be of any value, the facts on which it is based must be proved by admissible evidence."[38][37] Blackwood v Mana [2014] ICQ 027.[38] Ibid [13]. One of the challenges associated with the medical evidence in this appeal are the inconsistencies in the histories provided by the Appellant to both Dr Chau and Dr Arthur about his circumstances, both before and after his physical injury. Moreover, there were several inconsistencies and a certain level of ambiguity in some of the evidence the Applicant provided to the Commission. Unhelpfully, the Appellant also did not call any other witnesses to support or corroborate his account of what was occurring in his life both before and after he injured his arm in March 2016. For example, the Appellant provided varying accounts to both Dr Arthur and Dr Chau of the extent, nature and timing of his consumption of ice both before and after he injured his arm. Likewise, during the proceedings when presented with a progress note from the Redcliffe Hospital containing a notation relating to the extent of his drug use around the time of his physical injury, the Appellant initially agreed with the account read out to him by his representative, but retreated in cross-examination from the idea that he had been consuming ice to the extent represented in the note. Although the Appellant’s reports to both doctors along with his evidence to the Commission, in respect of the reasons for his formal separation from his partner in the months after his physical injury, were generally consistent, the full extent and nature of his relationship with his partner and children prior to and after the injury was at times, unclear. Likewise, although Dr Chau and to an extent, Dr Arthur, were of the understanding the Appellant’s attendance at work was stable and consistent, there was limited evidence before the Commission to corroborate the full nature and extent of his employment prior to his physical injury. Having regard to the inconsistencies identified above, in combination with Dr Arthur’s views about the Appellant fulfilling the criteria for an anti-social disorder (which I accept) and the challenges this raises in respect of the quality of history provided by the Appellant, I agree with the Respondent that this is a case where the evidence provided by the Appellant about the nature and reasons for his drug use, should be treated with some caution. As such, I consider the Redcliffe Hospital notes, in respect of the Appellant’s drug use are a more reliable and accurate reflection of his consumption of ice in the period immediately before he injured his arm. That is, the Appellant was consuming ice intravenously and on a regular basis, immediately before he injured his arm in March 2016.