Ferrington v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 42

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Ferrington v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 042 PARTIES: Ferrington, Timothy (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2011/267 PROCEEDING: Appeal against the decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 24 February 2014 HEARING DATES: 15 January 2014 16 January 2014 17 January 2014 MEMBER: Deputy President Kaufman ORDERS : 1. The Appeal is allowed 2. The decision of the Regulator is set aside 3. The claim is one for acceptance 4. The Employer is to pay the Appellant's costs of and incidental to the Appeal CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Whether an injury was suffered - Whether injury arose out of, or in the course of, employment - Whether the worker's employment was a significant contributing factor to the injury - Psychological injury - Worker bears onus - Balance of probabilities - Medical evidence - Appellant discharged onus - Appeal allowed CASES: Workers' Compensation and Rehabilitation Act 2003, s 32, s 515 Toll Holdings Ltd AND Q-COMP (WC/2010/96) Thorsten Groos AND WorkCover Queensland (No. C43 of 2000) Lackey v WorkCover Queensland 164 QGIG 22 -- 1 of 9 -- 2 APPEARANCES: Ms C.N Hartigan, Counsel instructed by Taylors Solicitors for the Appellant Mr G.C O'Driscoll, Counsel instructed by Minter Ellison for the Employer Mr J.C Dwyer, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator) [1] This is an appeal by Timothy Ferrington (the Appellant) against a decision of the Review Unit, Q-COMP to confirm an earlier decision of WorkCover to reject the Appellant's application for worker's compensation under the Workers' Compensation and Rehabilitation Act 2003 (the Act). Since the making of the claim for compensation the Act has been amended with the result that Q-COMP has been abolished and replaced by the Workers' Compensation Regulator, Simon Blackwood, the respondent (the Regulator). In this decision references to the Regulator include Q-COMP. [2] On 6 June 2013, Deputy President O'Connor granted leave (by consent) to North Goonyella Coal Mines Pty Limited (the Employer) to be heard on the appeal. Background [3] On 20 July 2009 the Appellant lodged an application for compensation with WorkCover for an injury described as "nervous system in general, diseased brain, spine, peripheral nervous" said to have been sustained during the course of his employment with North Goonyella Coal Mines Pty Limited on 15 July 2009. [4] WorkCover accepted the claim for chemical inhalation as a result of the application for compensation ("the accepted injury"). [5] In December 2010, the Appellant lodged a notice of claim for damages for the accepted injury and for a further unassessed psychiatric/psychological injury ("the unassessed injury"). Following an investigation, WorkCover provided the Appellant with its written reasons rejecting the Appellant's claim for the unassessed injury. [6] The Appellant sought a review of this decision to the Regulator and the Regulator issued its decision, upholding WorkCover's decision, on 23 June 2011. It is that decision that is the subject of this appeal. [7] This proceeding is by way of a hearing de novo and the Appellant has the onus of establishing on the balance of probabilities that he has suffered an injury within the meaning of s 32 of the Act. 1 Issues for determination in the Appeal [8] The issue for determination in this appeal is whether the Appellant sustained an "injury" within the meaning of s 32 of the Act. 1 Toll Holdings Ltd AND Q-COMP (WC/2010/96) – Decision <http://www.qirc.qld.gov.au >. -- 2 of 9 -- 3 [9] Section 32 relevantly provides: "32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if— (a) for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or … (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 other than a psychiatric or psychological disorder; (ii) a disease; (iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation; …" [10] There is agreement between the parties that the Appellant was a "worker" within the meaning of the Act. [11] Accordingly the remaining matters for determination are: (a) whether the Appellant sustained a personal injury, namely a psychiatric illness or psychological injury; and if so (b) whether that the personal injury arose out of, or in the course, of Appellant's employment; and (c) whether the employment was a significant contributing factor to the injury. The Injury [12] The Appellant was employed as a trades assistance (electric) by the Employer at the time of an incident that occurred at the North Goonyella coal mine on 15 July 2009. He was performing routine tasks on a shuttle car. The Appellant was to position the shuttle car so that another worker, Gavan Lisle, could perform routine maintenance on it. In the course of this activity, Mr Lisle poured a cleaning agent, Lectra Clean, directly from a four litre tin onto the conveyor gearbox of the shuttle car. This immediately produced steam-like toxic vapours together with a strong unpleasant odour. The Appellant and another employee Michael Chamberlain were downwind and were briefly exposed to the fumes. The principal constituent ingredients of Lectra Clean are 1-Bromopropane and Isopropyl. -- 3 of 9 -- 4 [13] The Appellant was exposed to the vapours for approximately 15 seconds. He said that he immediately felt dizzy and drunk and that his head began pounding and that immediately after the incident he was most concerned for his safety as a result of the exposure to the Lectra-Clean and he had thoughts that he was going to die. [Transcript 1-30, Line 37]. He said he inhaled the vapours only once before he was able to move to relative safety, where he vomited twice. He began shaking uncontrollably, his head was pounding, he had difficulty breathing, had numb lips and hands, was purple and felt cold. He was taken to the surface and went to a first aid station from where he was taken by helicopter to the Mackay Base Hospital. [14] He was discharged from hospital the following morning, albeit he couldn't feel his feet and had trouble walking. He said he felt as though his body was going to shut down at any time. His symptoms persisted, and he returned to the hospital a few days later. He was given an ECG and believes that he had experienced a panic attack. He thought he was going to die; that he was going to have a major heart attack [Transcript 1-34, Lines 20-26]. [15] He subsequently experienced two fainting fits that he believes may have been epileptic fits. He saw his GP and was prescribed Epilem, an anticonvulsant medication. The Appellant said that his doctor told him that there was something in the chemical that might have caused him to have experienced an epileptic fit. Apparently the doctor likened the exposure to that of being exposed to Agent Orange. The Appellant is concerned that he might develop cancer at a future time. He has also been advised by at least one of his medical practitioners that he has peripheral neuropathy as a result of the incident. [16] I will deal with the medical evidence in this matter shortly, but the weight of it is to the effect that there is no organic or neurological cause for the presentation of the Appellant's symptoms. [17] The Medical Assessment Tribunal, in a decision of 15 April 2010, determined that there does not exist in the Appellant an incapacity for work resulting from the injury for which the application for compensation was made. That claim was made on 20 July 2009 alleging that the nature of the injury is "chemical inhalation". By operation of s 515 of the Act, the Tribunal's decision is final and binding. It has the effect that I must accept that there is no neurological or organic cause for the Appellant's symptoms. [18] Although the Appellant does not currently suffer as badly as he did shortly after the incident, he still has symptoms such as lack of smell in his left nostril, and numbness and lack of sensation in his hands and feet. He related incidents of having had a large splinter in the sole of one of his feet that occasioned his foot to bleed, and having received burns to his hands after removing hot items from the oven that resulted in blisters, without him having been aware of the injuries because he experienced no pain. [19] The medical evidence to the effect that there is no organic cause for the Appellant's symptoms is conveniently summarised in the written submissions of the Employer. It seems to be accepted by the Appellant, at least for the purposes of this appeal, that this is the case. Accordingly, I adopt those parts of the submissions in paragraphs [20] to [25] hereunder. -- 4 of 9 -- 5 [20] "Dr John Cameron, Consultant Neurologist, who has an interest in toxicological injuries opined: … 'The applicant was exposed very briefly to the vapour which caused him to be acutely unwell at the time. On examination the applicant appeared to be listless and anxious and demonstrated a bizarre gait and altered sensation and strength around his feet which was not supported by nerve conduction studies. His symptoms also included constant headaches, tingling in the chest and hands as well as two unexplained blackouts. The Appellant had developed a stress disturbance as a consequence of this exposure.' [21] "As Dr Cameron could not find any evidence that the Appellant had suffered any organic neurological condition as a result of the exposure, he believed it highly improbable the brief exposure would have caused any neurological impairment. [22] "An MRI of the Appellant's brain on 21 October 2009 did not identify any specific structural abnormality to explain the Appellant's symptoms, although Dr Cantor suggests that there may be an undetected brain lesion that might be explicable of his symptoms. EEG investigations were normal. [23] "Dr McCartney … an Occupational Physician, considered the Appellant's subsequent symptoms and signs appeared consistent with: a) general non-specific depression of the central nervous system; b) peripheral neuropathy; c) an acute stress response; d) given the Appellant's short term exposure and investigations undertaken, it would be expected that neurological problems would have resolved promptly. [24] "Dr Carroll … a Physician with special interests in toxicology, examined the Appellant on 14 December 2009 and was unable to link his current symptomatology to the event. [25] "Dr Riemers … Neurologist, reported that the Appellant had undergone nerve conduction studies and found it difficult to provide any neurological explanation for all of the Appellant's symptoms. Dr Riemers did not believe that the Appellant was an epileptic." [26] The Employer submitted that the Appellant therefore, as a matter of fact and of law, has had specifically excluded that there is any causal relationship with the development of his symptoms that is explicable in a neurological and/or toxicological sense. -- 5 of 9 -- 6 [27] It is thus necessary to determine whether the Appellant has suffered some other injury such as a psychiatric or psychological injury. [28] Dr Chris Cantor, a psychiatrist gave evidence on behalf of the Appellant. He provided a lengthy report [Exhibit A10]. He divided the Appellant's symptoms into five "domains"; panic symptoms immediately after the incident and ongoing, minor other mood disturbances, largely settled, ongoing loss of sensation particularly in hands and feet, alcohol abuse for twelve months but in remission and ongoing cognitive difficulties. He was of the opinion that, in DSM-V terms, three diagnoses are most likely: Somatic Symptom Disorder - moderate, Conversion Disorder and alcohol abuse in remission. [29] During his re-examination, Dr Cantor was asked to put aside DSM categories and state whether in his opinion the Appellant had suffered a psychiatric injury as a result of the incident of 15 July 2009. The doctor's unequivocal answer was that he had suffered a psychological injury as a result of the incident. [30] Ms Leanne Jackson, a clinical neuropsychologist, also gave evidence for the Appellant. She had examined him on two occasions and her reports of 13 February 2010 and 16 August 2012 were admitted into evidence. In her first report [Exhibit A11], some six months after the incident, she was "inclined to a dual diagnosis of cognitive impairment associated with brain insult (mild to moderate) and adjustment disorder with depressed mood (mild)." In her second report, [Exhibit A12] she gave him "a diagnosis of Cognitive Disorder Not Otherwise Specified (DSM-IV; 294.9). This category is for disorders where there is a cognitive dysfunction (evidenced by neuropsychological testing) presumed to be the direct physiological effect of a general medical condition (in this case, acute toxic solvent exposure)." [31] Dr Jon Steinberg, a consulting psychiatrist, was called by the Employer. He examined the Appellant on two occasions and provided three reports. He reviewed all the relevant reports relevant to the Appellant's condition provided by other medical and like practitioners. In his report dated 16 August 2010 he concluded that the Appellant did not have a psychiatric condition and that from a psychiatric point of view he had not developed symptoms consistent with any form of psychiatric illness. [32] In his second report, dated 16 October 2013, after reviewing various reports, Dr Steinberg concluded that there was no evidence from those documents that had demonstrated that the Appellant had developed any form of psychiatric illness since the doctor had interviewed him in August 2010. He concluded that it was possible that the Appellant had become emotionally distressed since the incident because, as he had not returned to work, he may have significant difficulty supporting his family financially. In the doctor's opinion those factors could possibly contribute to the onset of an Adjustment Disorder with anxiety or depressive symptoms. The doctor believed that the Appellant may have also developed abnormal ways of coping with stress, such as the development of a Conversion Disorder and with pseudo-seizures. -- 6 of 9 -- 7 [33] In his third report, dated 12 December 2013, after again having examined the Appellant, the doctor was unable to diagnose Factitious Disorder or Malingering (which of course is not an illness and therefore not susceptible of being diagnosed). He added that a Conversion Disorder could be considered "although there is no evidence that there was a psychological precipitant or a social stress causing him to develop a range of physical symptoms which were not explained by an expert opinion." The doctor did not believe that the Appellant had met the criteria for this condition. He concluded that the Appellant was not currently suffering from a psychiatric disorder. [34] I prefer the evidence of Dr Cantor. In any case, although Dr Steinberg did not conclude that the Appellant suffered a Conversion Disorder he did say that such a diagnosis could be considered. [35] Counsel for the Employer submitted that because the Appellant steadfastly holds to his belief that his symptoms are due to some organic, neurological injury he suffered as a result of the inhalation, and because Dr Cantor has not ruled out the possibility that an organic cause for the symptoms might one day be found, I cannot be satisfied that the Appellant has suffered a psychological injury. I reject this submission. There is ample evidence that the Appellant's symptoms are not due to any organic causation. That is the current state of the evidence before me. In addition I am bound by the finding to similar effect by the Medical Assessment Tribunal. [36] I am satisfied that the Appellant has suffered a psychological injury, whether it be within the DSM-IV criteria or otherwise. [37] Given that the Appellant had no symptoms prior to the incident, that they manifested themselves immediately after the exposure to the fumes on 15 July 2009, that many of them continued for a considerable period of time and that he still experiences some of them, in particular the lack of sensation in his hands and feet, I am also satisfied that the psychological injury arose out of, or in the course of, the Appellant's employment. [38] I do not accept the Employer's submission that the chain of causation is in some way broken by doctors telling the Appellant that his exposure was akin to Agent Orange exposure, that he was suffering from epilepsy or peripheral neuropathy or that he acquired literature on the effects of exposure to 1-Bromopropane. None of this detracts from the basic facts that he was exposed to and inhaled the fumes, that he immediately experienced the symptoms, that he still experiences some of the symptoms and that there is no organic cause to explain them. President Hall had occasion to deal with a similar matter in Thorsten Groos v Workcover Queensland. 2 In that case, Mr Groos threw himself backwards off the trailer of a truck to avoid being struck by a heavy steel girder. It was a life threatening incident and Mr Groos suffered broken bones. Whist in hospital he had difficulty sleeping and suffered nightmares in which he relived the incident. The issue was whether his feelings of anxiety and frustration after discharge from hospital amounted to his having suffered from a psychiatric disorder or psychological injury. 2 Thorsten Groos AND WorkCover Queensland (No. C43 of 2000) - Decision <http://www.qirc.qld.gov.au>. -- 7 of 9 -- 8 [39] In holding that he had suffered an injury, his Honour said: "It may be conceded that each of the two psychiatrists, Dr Chalk, who had been called by WorkCover Queensland, and Dr Mulholland, who had been called by the Appellant, declined to diagnose the Appellant as suffering from a psychiatric disorder or a psychological injury. One can understand why. The Appellant did not reach the threshold on the diagnostic standard, DSM 4, used by those who practice as specialist psychiatrists. However, that is not the end of the matter. There is clear evidence by Dr Mulholland, who unlike Dr Chalk did not consider it unnecessary to go beyond the DSM 4, that the Appellant was suffering 'emotional problems' and that his disorder was probably 'best regarded as a non- psychopathological dysphoric reaction to bio-psychosocial stress which is all readily understandable given the circumstances of his life'. The question whether an applicant for compensation has suffered an "injury" within the meaning of the Workers' Compensation Act 1990 is a question of mixed fact and law on which medical evidence is often helpful, but necessarily not decisive. If the legislature had wished to confine relief to cases in which a condition answered the criteria of DSM 4, the legislature might have said so. By way of example, s. 214 of the Workplace Relations Act 1997 (now repealed) provided 'If an expression used in this chapter is also used in the Termination of Employment Convention 1982, it has the same meaning as in the convention'. It is difficult to accept that a diagnostic standard developed to ensure that psychiatrists from different backgrounds diagnose on the basis of a common international standard is an appropriate mechanism to use in assessing whether a worker suffering impairment arising out of the course of his employment and to which his employment was a significant contributing factor, is entitled to assert entitlement to compensation for the impairment because he has suffered an 'injury' within the meaning of the Workers' Compensation Act 1990… …Dr Mulholland has worked backwards assessing the degree of impairment, noticing the causal nexus with the incident of 14 January 1997, and concluding that the Appellant was 'injured' by the incident. It may be conceded that that process of reasoning is a process of reasoning which the Act does not require… …What is put, and put correctly, is that in the case where there is no evidence to the contrary, the existence of the injury may be inferred from the existence of the impairment. In my view the Industrial Magistrate did not err in finding that the Appellant had suffered an '"injury' within the meaning of the Workers' Compensation Act 1990. Where the Industrial Magistrate did err was in finding that the injury did not arise out of the course of the Appellant's employment. The Industrial Magistrate seems rather to have been of the view that the Appellant's condition arose out of events, in particular the Appellant's inability to find employment, which occurred after his employment had come to an end. The shortcoming in that approach is that it omits to take into account that every post- employment factor to which one might legitimately refer, is linked to the incident of 14 January 1997. The Appellant lost his employment because he returned to work too early and could not cope. He could not cope because he was not fully recovered from the incident of 14 January 1997. He has not been able to obtain -- 8 of 9 -- 9 alternative employment because, in consequence of the physical injuries of 14 January 1997, he can no longer perform the work which he is trained to perform. The Appellant becomes bored, frustrated and anxious because he has nothing to do. He has nothing to do because of the unemployment which, as previously noted is linked back to the injuries of 14 January 1997. He drinks to relieve that boredom and he drinks to relieve the continuing pain of the physical injuries of 14 January 1997. The Appellant is certainly depressed by his inability to return to his previous occupation. But that inability itself arises out of the injury of 14 January 1997. I gave my view of the meaning of "arising out of the employment" in Lackey v WorkCover Queensland 164 QGIG 22 at 22. There is no utility in quoting the passage here. It is sufficient to say that every consideration of cause and consequence links the Appellant's current condition to the dreadful incident of 14 January 1997. I note that, swearing to the issue, Dr Mulholland was of the view that the incident of 14 January 1997 was a significant contributing factor to the Appellant's condition. That medical opinion is not of course conclusive. However, since much of the evidence about the Appellant's condition at the time of the hearing in the Industrial Magistrates Court comes from Dr Mulholland, it is comforting to know that he takes that view. For myself, I have not the least difficulty in characterising the incident of 14 January 1997 as 'a significant contributing factor'. The tendrils of cause and consequence link the Appellant's condition and the factors currently influencing his condition to the evasive action, physical injury and fright of the incident of 14 January 1997." [40] I respectfully adopt his Honour's reasoning and find that the tendrils of cause and consequence in this case also link the Appellant's condition and the factors currently influencing his condition to the exposure to the toxic fumes, physical injury and fright of the incident of 15 July 2009. [41] Although Groos 3 and Lackey 4 both involved depressive type symptoms, whereas here the Appellant's experiences mainly symptoms that can be more properly characterised as sensory, the reasoning in Groos and Lackey is apposite. I note that in Groos and Lackey, findings similar to those of Dr. Steinberg outlined in paragraph [32] of these reasons were sufficient to enable President Hall to conclude that there had been an injury. [42] The incident occurred whilst the Appellant was at work and during the course of his employment. It was the precipitating act for all that followed. Whatever the contribution of the information given to the Appellant from various sources, the incident of 15 July 2009 is, I find, a significant contributing factor to the injury. [43] I allow the appeal, set aside the decision of 23 June 2011 of the Regulator, and determine that the Appellant's claim is one for acceptance. [44] I order that the Employer pay the Appellant's costs of and incidental to the appeal. 3 Thorsten Groos AND WorkCover Queensland (No. C43 of 2000) - Decision <http://www.qirc.qld.gov.au>. 4 Lackey v WorkCover Queensland 164 QGIG 22. -- 9 of 9 --