Callaghan v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 147

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Callaghan v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 147 PARTIES: Callaghan, Sally Emilar (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2015/64 PROCEEDING: Appeal against decision of Regulator DELIVERED ON: 7 August 2015 HEARING DATES: 15 and 16 June 2015 MEMBER: Deputy President O'Connor ORDERS: 1. The appeal is dismissed; 2. The decision of the respondent dated 17 February 2015 is affirmed; and 3. The appellant is to pay the respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF REGULATOR - CASES: Workers' Compensation and Rehabilitation Act 2003, 32 Chattin v WorkCover Queensland [1999] ICC 44 Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 Davidson v Blackwood [2014] ICQ 008 [17] JBS Australia Pty Ltd v Q-Comp (C/2012/35) Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519 -- 1 of 12 -- 2 Q-COMP v Green (2008) 189 QGIG 747 APPEARANCES: Mr B. Charrington, Counsel instructed by McNamara and Associates for the appellant. Mr G. Rhead, Counsel directly instructed by Workers' Compensation Regulator. Decision [1] This is an appeal by Sally Emilar, Callaghan ("the appellant") to the Queensland Industrial Relations Commission ("the Commission") against the decision of the Review Unit of the Workers' Compensation Regulator ("the Regulator") in a letter dated 17 February 2015, rejecting her application for compensation. The appeal is made under the Workers' Compensation and Rehabilitation Act 2003 ("the Act"). [2] The appellant was employed by Queensland Health as an endovascular theatre nurse at the Royal Brisbane and Women's Hospital ("RBWH") from 16 August 2010 to 2 June 2013. [3] It is the appellant's case that her injury was sustained during the course of her employment, culminating in an episode of back pain that occurred on 19 November 2012. [4] The appellant issued a notice of claim for damages on 23 May 2014 to WorkCover Queensland for a back injury said to have been sustained during the course of her employment as a Registered Nurse. [5] On 14 October 2014, WorkCover decided that the appellant had not suffered an injury in accordance with s 32 of the Act. [6] The appellant applied for a review of the WorkCover decision. The Regulator, by a decision dated 17 February 2015 confirmed the WorkCover decision. It is against that decision that the appellant now appeals to the Commission. [7] It is accepted that the appellant was a 'worker' within the meaning of the Act. Statutory provisions and onus of proof [8] The appeal has to be decided by reference to s 32 of the Act which, at the time material to the appellant's notice of claim for damages, relevantly provided: "32 Meaning of injury (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 - -- 2 of 12 -- 3 (a) a 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 personal injury or disease because of the aggravation…" [9] The evidence of the appellant was that within eight months of commencing employment at the RBWH she developed back pain. The appellant told the Commission that she experienced back pain or back strains on and off for a period of time but not to the extent that required medical intervention. The pain would last a couple of weeks and go away. She managed the pain by the use of Panadol and Nurofen. [10] On 19 November 2012, the appellant was rostered on for an afternoon shift. The appellant recalled that the back pain had started a week earlier and continually got worse throughout the shift. Some five hours into the shift, the appellant said that the pain became so significant that she felt like she had to lean on her trolley consistently. She said that she broke out in a sweat, lost all feeling in her leg, and became so distressed that she asked to be scrubbed out. [11] It is the appellant's contention that the wearing of leads caused the onset of pain in her lower back. It was the appellant's evidence that protective x-ray gowns or "leads" are used predominately for vascular, orthopedic and urology procedures. [12] The use of the expression "leads" is something of a misnomer. It is a common term used by staff as previous X-ray protective gowns were made from lead, but modern protective gowns are made from a non-lead based composite material. [13] The appellant told the Commission that the protective gown weighed between 10 and 12 kilograms but had initially told Dr Tomlinson that they weighed between 15 to 20 kilograms in weight. [14] The evidence before the Commission1, which I accept, is that the indicative weights for a small vest and skirt apron is 4.5 kilograms, and 4.8 kilograms for a medium vest and skirt apron. [15] The appellant said that her correct size was a small gown which was colour coded pink. Sometimes, she would have to wear a medium vest which was not as comfortable. About 70% of the time she was able to fine a two piece vest and apron and the remaining 30% of the time she had to wear a one piece gown that was not exactly the right fit for her. There was, according to the appellant, a lack of waist supports available to secure the medium vest which caused it to move. In a full day, the appellant would, on average, wear leads for approximately 3 hours per day. If it was a day full of endovascular procedures then she may wear leads for up to 8 hours per shift. 1 Exhibit 2. -- 3 of 12 -- 4 [16] As the following exchange during cross-examination illustrates, the appellant was only required to wear leads during the shift for a single urological procedure which lasted a maximum of 18 minutes: "I suggest that in fact the procedure that you - you only had one procedure that day, and that the procedure itself lasted 18 minutes, and that you did no other procedures where you had to wear a vest during the course of that day?--- I was doing a procedure in lead when I had to be unscrubbed from it to go to the emergency room. In fact, you didn't even spend the full 18 minutes of the procedure?--- I couldn't. I couldn't. It was hurting me too much. So it had only been a matter of minutes that you'd been wearing the vest when you suffered this serious pain and discomfort?--- Well, the pain had been escalating throughout the week, and that night was particularly bad, and then, when I'd gotten into that lead to do the urology procedure I was scrubbed for, it became unbearable, and I needed to be scrubbed out and go to the emergency room. And you knew at that stage, in your own mind, that it was the vest that was causing the problem?--- It exacerbated the problem. I'm sure of it."2 [17] The appellant spoke to Mr Jeff Anderson, the after-hours clinical nurse consultant for the Perioperative Services at the RBWH, and it was agreed that she should attend the Department of Emergency Medicine ("DEM") to obtain some treatment. [18] Mr Anderson told the Commission that he was not told that the appellant's back pain was work related. He said that it was his "mantra" to advise staff that if it is known to be work-related then to complete a workplace incident form regardless. He said: "I've got staff that come up to me and they say they've felt – they've twisted their knee or something like that. I would always say, 'Go down to DEM, get it checked out and fill in an incident form for me'"3. [19] The appellant attended at the DEM during her Dinner break but could not be immediately treated. The DEM was busy and no doctors were available to see the appellant. She waited for a few hours before leaving to go home where she went straight to bed. [20] Around 6.00 am on 20 November 2012, the appellant returned to the DEM where she saw the emergency room registrar who arranged for her to see a physiotherapist. The appellant was told not to go back to her morning shift and was advised to go home. [21] A non-workers' compensation medical certificate was issued by the DEM. The appellant's evidence to the Commission was that she was prescribed Endone and told to go to see her general practitioner. 2 T1-41 Ll. 35-47, T1-42 Ll. 1-2. 3 T1-74 Ll. 44-45. -- 4 of 12 -- 5 [22] On either 20 or 21 November 2012, the appellant attended at the Nundah Doctors Surgery and saw Dr Suwaneetha Gunaratne. There was no oral evidence given by Dr Gunaratne nor were her clinical records for the relevant period tendered in evidence before the Commission. [23] The appellant returned to work in late November or early December of 2012 after approximately 10 days leave and was subject to a restriction on the wearing "leads" of four hours per day. The evidence was that the restriction on the wearing of "leads" given by the appellant's general practitioner was adhered to by the RBWH. [24] Ms Emma Babao, the nurse unit manager of the level 4 operating rooms asked the appellant to inquire of her general practitioner how long she could wear lead for. The appellant told Ms Babao that her doctor, in a non-WorkCover medical certificate, advised that she could wear lead for up to four hours per day. Ms Babao said that "after the 19th of November that's what I ensured until she resigned."4 [25] Ms Babao told the Commission that "if staff members come to me saying that they have a bad back, my response is, 'Have you injured yourself as a result of your work?' If the answer is yes, we follow the WorkCover occupational health and safety reporting an incident. If it's not a work-related injury, we don’t follow that course. But there are staff members in our theatres that – that do have back injuries."5 [26] In cross-examination, the appellant accepted that she did not advise anyone at RBWH that she had suffered a workplace injury. [27] The first occasion on which the appellant formally detailed the nature of her injury, was in the Notice of Claim for Damages filed on 23 May 2103. In particular, she identified the cause as being the wearing of lead garments for extended periods of time. [28] It was accepted by the appellant that at no stage prior to 19 November 2012 did she say to her treating general practitioners that she experienced any back pain as it was, according to the appellant, not really an issue. [29] Ms Babao was responsible for the clinical coordination and human resource management of the nursing staff within the operating theatres. Ms Babao told the Commission that Mr Anderson sent her an email on 19 November 2012, advising that during the night shift, the appellant had gone to the DEM because she had a sore back. [30] Ms Babao told the Commission that unless a staff member is unable to complete an incident report, it is a staff member's responsibility to make a report of any work related injury. [31] At no stage was Ms Babao made aware by the appellant that the injury was work related nor was an incident report submitted. 4 T2-8 Ll. 13-14. 5 T2-9 Ll. 45-48, T2-10 Ll. 1-2. -- 5 of 12 -- 6 [32] Ms Babao confirmed in her evidence that she was only supplied with a non- WorkCover medical certificate from the appellant and all of the medical certificates that she received after that were also non-WorkCover medical certificates. [33] Evidence was given by Suzanne Kurz, the nurse manager of assets and equipment for Perioperative Services at RBWH. She told the Commission that under the Radiation Safety Protection Act, an annual audit is conducted in order to check the integrity of the X-ray gowns to ensure they continue to provide protection for the staff from radiation. In addition, there is a reporting mechanism in place which requires a staff member who identifies a gown that requires repair, to bring it to the Perioperative Services management office, which is located on the floor as the main operating theatres and arrangements would be made to either repair the garment or replace it. [34] Ms Kurz said that the support belts, have no protective quality and may be used at the discretion of the staff member. She said that they are available to a staff member for additional support. "However, the vest and skirt distributes the weight between the upper and lower body so, if they choose to wear a support belt, they may, or they may choose not to wear them, but they are provided for staff"6. [35] The appellant submitted the Notice of Claim for Damages on 23 May 2014, some 11 months after she had resigned from the RBWH. She explained the reason for submitting the Notice of Claim for Damages in the following terms: "DEPUTY PRESIDENT: So what prompted you to make an application in the ---?---When I was studying and the more vigorous my studies got with design, it actually entails a lot of drawing and a lot of sitting still, I noticed that the pain in that, sort of, mid area of my back when I had been drawing for long hours or sitting down for long lectures, it started to flare up again the same way it used to flare up. But this time it was significantly more painful and it actually distracted me from - I would start to fidget and I would have to move around. And I became very self-conscious in lectures doing it because I worried about interrupting other people. And then trying to draw for assessment, I found it very difficult to sit for more than a couple of hours. And to do design you've got to very meticulously draw and that interrupted. And I got to a point where I realised that this injury was going to be exacerbated by this new career which I didn’t realise it was going to do."7 [36] Between 19 November 2012 and when she finished her employment at the RBWH on 2 June 2013, the appellant was experiencing pain and taking medication although her condition was improving but it still was affecting her job. [37] The appellant told the Commission that she was of the view that if she left nursing her back condition would improve. It was not until she was studying for her Bachelor of Design that she began to realise that her back condition was going to be more of a long term problem for her. 6 T1-63 Ll. 22-25. 7 T1-48 Ll. 4-15. -- 6 of 12 -- 7 [38] The appellant accepted in cross-examination that the statement, "The appearance of back pain whilst at work, having worked eight hours in lead garments" contained in the her Notice of Claim for Damages filed on 23 May 2013 was incorrect. [39] Further, the Notice of Claim incorrectly alleged that the appellant's injury was sustained over a period of time from 16 August 2010 to 2 June 2013 which exceeded the relevant period, as the injury had, on the appellant's case, been sustained on 19 November 2012. [40] It was submitted by the appellant that the Notice of Claim for Damages was completed by her solicitors and "…it was apparent that aspects of the description contained in that document involved mistakes in the translation of her instructions."8 [41] The appellant returned to nursing in late 2014 as an agency-registered nurse. She is currently working exclusively for the Wesley Hospital doing an 8 to 8 and half hour shift three times a week. Whilst the appellant has returned to wearing leads, her role is predominately in orthopaedics which permits her to sit for most procedures. The Medical Evidence [42] The only expert medical assessment before the Commission was that of Dr Francis Tomlinson, a neurosurgeon. Dr Tomlinson prepared reports dated 23 July 20149, 17 October 201410, and 28 October 201411 and a file note dated 23 July 201412. In the report of 23 July 2014, Dr Tomlinson opines: "Miss Callaghan sustained an injury to her thoracic and lumbar spine. I believe that her injuries have stabilised and are likely to represent a permanent state of affairs." [43] Dr Tomlinson goes on to note in relation to the thoracic and lumbar spine in identical terms, the following: "Miss Callaghan reports persisting symptoms. These would be consistent with the injury she sustained. Clinically there is no evidence of fracture or dislocation. If she has ongoing symptoms I would recommend she undergo imaging of the region. Miss Callaghan's ongoing condition would be consistent with a chronic soft tissue injury."13 [44] This report of Dr Tomlinson further notes that the appellant had reported "recurrent and intrusive thoughts in relation to her work related injuries. If her symptoms persist I would recommend review by a psychologist or psychiatrist to assess her psychiatric impairment rating in relation to the injuries she sustained as a result of her work between 16.8.2010 and 19.11.2012"14. 8 Submission of the appellant para [20]. 9 Exhibit 3. 10 Exhibit 4. 11 Exhibit 5. 12 Exhibit 7. 13 Exhibit 3. 14 Ibid. -- 7 of 12 -- 8 [45] The appellant had a history of depression as is evident from the following exchange during cross-examination: "Because you were having problems for some years where you were going to GPs for treatment for depression, weren't you?--- Yes, I did have bouts of depression during most of my adult life. Yes. And you went to a number of medical centres: the Deagon Family Medical Centre?--- Mmm. The Bribie Island Medical Centre, the Nundah Doctors Surgery?--- Yes. The Ashgrove Clinic, the Toombul Centre?--- Mmm. And to the hospital, and you had X-rays done during that time as well?--- Mmm. ….. And you were being prescribed drugs for your depression problems?--- At some point before that, yes. …. Yes. And you didn't see fit to tell those GPs at any stage up until the 19th of November 2012 that you'd had back pain?--- No. And during that period of time you got a number of medical certificates that they issued, to take off time for, for your depression?--- I just took days off when I needed to take days off. It was for my depression or for any pain I was experiencing. I can't remember exactly what days I would have taken off for which. Yes?--- I would just go into my GP and ask for a medical certificate if I needed any time off for any reason if it involved my health. Yes. Did you ever get time off for a sore back which you didn't tell your medical practitioner about?--- No, I don’t think so, before that."15 [46] It was submitted by Counsel for the appellant that the reports of Dr Tomlinson confirm a direct causal link between the appellant's employment duties and her lumbar and thoracic injuries. In my view, they do not. [47] The medical reports of Dr Tomlinson simply state, at the highest, that the appellant's "… ongoing difficulties relating to her injuries which occurred in relation to her work at the Royal Brisbane and Women's Hospital between 16.8.210 and 19.11.2012. I believe it is probable that her condition, related to her work 15 T1-35 Ll. 1-44. -- 8 of 12 -- 9 between 16.8.2010 and 19.11.2012, in the future, will have an adverse effect on her ability to earn income"16. [48] It was submitted by the appellant that the letter of Dr Gunaratne to physiotherapist Ms Julie Smith, dated 5 December 201217, listed the wearing of lead protective clothing was the sole causative factor in the development of her back pain. In my view, such a submission overstates the import of the letter. The letter no more than recounts the appellant's history given to her by the appellant. The letter relevantly states as follows: "Thank you for seeing Sally Callaghan, age 30 yrs, for an opinion and management. She is a theatre nurse at RBH who often works with lead on. She has had slowly developing low back pain and recently developed tingling over her L thigh. Suggesting an L1 disc lesion. I feel she would benefit from physio and hysrotherapy (sic)." [49] Equally, the submission that the physiotherapy notes taken on 20 November 201218 when the appellant attended the DEM do no more that state the fact that the appellant was a nurse who wore "lead suits". [50] In his oral evidence, Dr Tomlinson said "Doctor, you've based your opinion on also that she had - the first time this - you've called it serious onset of pain, occurred on the 19th of November. You don't see any correlation between the state of her spine as evidenced in the reports as to minor degenerative changes, that she was experiencing pain as early as eight months after starting with the Royal Brisbane Hospital?--- All I can say is, you know, from my - in my - from my reports, you know, her – her job has been a significant contributing factor. The fact that she went to the emergency room, you know, it's a contemporaneous note as to how she was feeling. And, you know, it's - that's it, yeah."19 [51] Whilst Dr Tomlinson was of the opinion that work contributed her injury, he did not draw a direct causal link between how the wearing of leads had contributed to the diagnosis of a chronic soft tissue injury. Dr Tomlinson said: "So it may be that it's two kilograms – this is just an option – two and a half kilos on the top half and two and a half kilos on the bottom. It could be bigger or lesser on both areas?--- Yes. Whatever - whatever - as I said, I - I fully take your point. I'm not in the workplace. I don't - I don't know the quality of the gear. I can't remember her. I just wrote down what she said and, you know, that's – that's All right?--- That's what it is, but it does - but the stress on your back does change if you are starting to bend forward, even if you don't have a gown. 16 Exhibit 5. 17 Exhibit 9. 18 Exhibit 10. 19 T2-38 Ll. 17-25. -- 9 of 12 -- 10 But did Ms Callaghan ever complain about bending over and hurting her back, to you?--- Yeah – all I can – all I've got is what I wrote. Yes. All right? Okay?--- That's all I’ve got. You'd have to ask her."20 [52] It is for the expert witness to illuminate, to the extent of their knowledge and expertise the cause or causes of the appellant's injury.21 Neither Dr Tomlinson's oral evidence nor his written reports were, in my view, helpful in determining the cause of the appellant's injury. His written reports are, at best, vague, repetitive and his oral evidence before the Commission was uninstructive. [53] Dr Tomlinson had no independent recollection of the examination of the appellant. Neither his clinical notes or various reports assisted to refresh his memory. He stated continually during cross-examination that he could not recollect seeing the appellant and that his reports were his reports. [54] I found Dr Tomlinson to be an unimpressive expert witness and accordingly little weight can be attached to his evidence. The authorities and their application to the present case [55] It is accepted that the appellant bears the onus of establishing that her back injury arose out of or in the course of her employment and that her employment was a significant contributing factor. [56] 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. [57] In Newberry v Suncorp Metway Insurance Ltd22, Keane JA, with whom de Jersey CJ and Muir J agreed, said: "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 employer) against whom the claim is made."23 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 evidence intention of the 20 T2-35 Ll. 34-46. 21 Davidson v Blackwood [2014] ICQ 008 [17]. 22 Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519. 23 Ibid, 529. -- 10 of 12 -- 11 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 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 former."24 [58] In Q-COMP v Green25, Hall P observed that in interpreting s 32 of the Act: "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 falling within the phrase would also arise out of the employment."26 [59] In JBS Australia Pty Ltd v Q-Comp27, Hall P wrote: "I should say to begin with that, I accept that the employment must significantly contribute to the occurrence of the injury. It is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence, compare Croning v Workers' Compensation Board of Queensland, at 101 per de Jersey P. It must be shown to be more probable than not that there is a significant causal relationship between the accident and the workers' post-accident condition."28 Conclusion [60] Whilst the appellant's employment at the RBWH did provide the setting against which she experience pain in her lower back, her employment was not, in my view, a significant contributing factor to her injury. As was observed in Croning v Workers' Compensation Board of Queensland29 the appellant's employment needs to be the "real effective cause" of the injury and not merely the setting or background in which the injury occurs. [61] The appellant noticed "random sporadic events of back pain" within eight months of starting work at RBWH, the lower back pain had become more noticeable a week or so prior to the 19th of November 2012 . 24 Ibid, 532-3. 25 Q-COMP v Green (2008) 189 QGIG 747. 26 Ibid. 27 JBS Australia Pty Ltd v Q-Comp (C/2012/35). 28 Ibid. 29 Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100. -- 11 of 12 -- 12 [62] Whilst the appellant's back pain developed eight months into her employment and became more pronounced a week or so prior to 19 November 2012, there is no compelling evidence before the Commission as to the nature or cause of the onset of the lower back pain. Whether the onset of back pain was work related or as a result of some other cause is not clear. [63] The appellant submitted that there was no evidence before the Commission that the appellant had a congenial or underlying degenerative pathology, or that any activity outside her employment gave rise to her injuries. However, the task of the Commission in determining whether or not employment has been a 'significant contributing factor to the injury' is not, in my view, a process of elimination. The proper task of the Commission is to assess the evidence before it to determine whether there is sufficient evidence to conclude whether on the balance of probabilities that employment was or was not a significant contributing factor to the injury. [64] As was observed by Williams J as President of the Industrial Court of Queensland in Chattin v WorkCover Queensland30: "The function of a court of law in a situation such as this is to determine whether, for whatever reason, it is more probable than not that there is a causal relationship between the accident and the plaintiff's post-accident condition."31 [65] When the evidence is considered in its totality, I am of the view that the appellant has failed to discharge the onus of establishing that she has suffered an injury within the meaning given to that term under s 32 of the Act. Accordingly, I dismiss the appeal and affirm the decision of the respondent. Orders [66] I make the following orders: 1. The appeal is dismissed; 2. The decision of the respondent dated 17 February 2015 is affirmed; and 3. The appellant is to pay the respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. 30 Chattin v WorkCover Queensland [1999] ICC 44. 31 Ibid, p3. -- 12 of 12 --