Davidson v Blackwood [2014] ICQ 8

INDUSTRIAL COURT OF QUEENSLAND CITATION: Davidson v Blackwood [2014] ICQ 008 PARTIES: STEVEN FREDERICK DAVIDSON (appellant) v SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR) (respondent) CASE NO: C/2013/25 PROCEEDING: Appeal DELIVERED ON: 2 May 2014 HEARING DATE: 10 December 2013 APPEARANCES: D Turnbull on behalf of the appellant, instructed by Dean & Bolton D Callaghan on behalf of the respondent, directly instructed MEMBER: Martin J, President ORDER/S: Appeal dismissed CATCHWORDS: WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT CONTRIBUTING FACTOR – TO INJURY – where a worker suffered an injury to his leg in 2010 for which he received compensation – where the worker suffered a disc protrusion in 2011 – where there was conflicting medical evidence as to the cause of the disc protrusion – whether the worker’s employment was a “significant contributing factor” in the disc protrusion APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – APPEALS BY WAY OF REHEARING – SCOPE AND EFFECT OF REHEARING – where the Workers’ Compensation and Rehabilitation Act 2003 provides for an appeal to the Court to proceed “by way of rehearing” – where the appellant submits that the hearing should proceed “de novo” and that the appellant must demonstrate an error on the balance of probabilities – where the respondent submits that the Court ought not intervene where the Commission gave “sufficiently comprehensive” reasons and reached conclusions “reasonably open” to it – whether either submission consistent with authority -- 1 of 7 -- 2 Workers’ Compensation and Rehabilitation Act 2003, s 32, s 561, s 562 CASES: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, applied Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied Labaj v WorkCover Queensland (2003) 174 QGIG 370; [2003] QIC 155, referred to Q-Comp v Hetherington (2004) 176 QGIG 493; [2004] QIC 47, referred to Q-Comp v Ungerer [2012] QIRComm 169, not followed [1] In December 2010 Mr Davidson was working as a plumber on a building site. While doing some roofing work, he fell from a scaffold some 2.5 metres above ground. As a result of the fall he suffered a compound fracture dislocation of the right ankle. He was treated in hospital and, on release, was required to wear a “moon boot” for some time. This injury was accepted as being compensable under the Worker’s Compensation and Rehabilitation Act 2003 (“the Act”). [2] In late September 2001 Mr Davidson and his children went to a shopping centre to watch some school holiday entertainment. While doing that he experienced the sudden onset of back pain. The pain worsened to the point where, on the following day, he was taken by ambulance to a hospital for treatment. Mr Davidson was diagnosed with a large left posterior L4-5 disc protrusion, extending inferiorly and compressing the left L5 nerve root within the spinal canal. [3] An application for compensation with respect to the back pain was lodged by Mr Davidson in December 2011. It was rejected by WorkCover. That rejection was confirmed by Q-Comp on the basis that the appellant had not sustained an injury within the meaning of that term in s 32 of the Act. [4] An appeal from Q-Comp’s decision was dismissed by the Commission. On this appeal, the appellant’s case is the same as it was below, that is, that his back injury arose out of, or in the course of, employment and that his employment was a significant contributing factor. He says that his back injury is a direct result of the injury he suffered when he fell from the scaffolding in 2010. Nature of the Appeal [5] Each party has advanced a different view of the process which is to be undertaken in an appeal of this nature. [6] The appellant argues: (a) That an appellant bears the onus, on the balance of probabilities, of showing that there is an error in the respondent’s review decision.1 (b) That the appeal is a “hearing de novo” and that this Court “hears the matter afresh, based on the material before the Court.2 [7] The respondent relies on the following statement of Hall P in Q-COMP v Ungerer:3 1 Labaj v WorkCover Queensland (2003) 174 QGIG 370. 2 Q-Comp v Hetherington (2004) 176 QGIG 493. 3 [2012] QIRComm 169. Despite the form of the citation, the case is a decision of the Court and not of the Commission. -- 2 of 7 -- 3 “ … it is not necessary for Counsel for the Appellant to identify an error of law. The Appeal at s. 561 of the Act is not confined in the same way as an appeal at s. 341(1) of the Industrial Relations Act 1999. The Appeal is by way of rehearing of the evidence of proceedings at first instance, see s. 561(3) of the Act. Neither must the Appellant satisfy the criteria of House v The King. The question whether Mr Ungerer suffered an over time injury, may be answered ‘yes’ or may be answered ‘no’. There is no discretion to exercise. However, I do accept appeals are about the correction of error. Where the Commission's reasons are sufficiently comprehensive as to expose the basis of the Commission's decision and the Commission's findings are reasonably open, this Court should not intervene.” [8] Section 561 of the Act provides: “(1) A party aggrieved by the industrial magistrate’s or the industrial commission’s decision may appeal to the industrial court. (2) The Industrial Relations Act 1999 applies to the appeal. (3) The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard. (4) The court’s decision is final.” (emphasis added) [9] The powers of the Court on appeal are found in s 562: “(1) In deciding an appeal, the industrial court may— (a) confirm the decision; or (b) vary the decision; or (c) set aside the decision and substitute another decision. …” [10] These provisions are of similar effect to those considered by the High Court in Allesch v Maunz.4 In considering the difference between an appeal by way of rehearing and a hearing de novo it was emphasised that, in the former type of appeal: (a) the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, and (b) an appellate court can substitute its own decision based on the facts and the law as they then stand.5 [11] Further consideration was given to the characteristics of an appeal by way of rehearing in Fox v Percy.6 In the joint judgment of Gleeson CJ, Gummow and Kirby JJ the following is said: 4 (2000) 203 CLR 172. 5 Ibid at [23]. 6 (2003) 214 CLR 118. -- 3 of 7 -- 4 “[22] … The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. … [23] … On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. … [25] … the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”” [12] Neither of the appellant’s submissions set out above are correct. First, this Court considers the Commission’s decision, not that of Q-COMP. Secondly, this is an appeal by way of rehearing, not an appeal de novo. [13] As for the respondent’s reference to the decision in Ungerer, the correct statements of principle are those contained in Allesch v Maunz and Fox v Percy as set out above. The appellant’s case [14] The grounds of appeal, put briefly, were: (a) The Commission ought to have concluded that the appellant’s back injury arose out of, or in course of, employment, and that employment was a significant contributing factor. (b) That Dr McPhee conceded that there was a causative link between the 2010 fall and the 2011 back injury, namely that the fall, by damaging the annulus of the disc, initiated a process of degeneration of the L4/5 disc which had as its result an extrusion at the shopping centre. (c) That Dr McPhee conceded that the fall “… was a significant contributing factor”. (d) That the evidence of Dr Curtis should have been preferred. -- 4 of 7 -- 5 Causative link – significant contributing factor [15] I will deal first with grounds (b) and (c) which concern the evidence of Dr McPhee. [16] Much was made in the appellant’s submissions of a number of answers given in cross-examination by Dr McPhee. At the end of his cross-examination the doctor agrees with a suggestion that the 2010 fall was indeed a “significant contributing factor” in the injury. It is important to read that question and answer in the context of that which preceded the exchange. Earlier in his cross-examination Dr McPhee states that he cannot exclude the possibility that the 2010 fall contributed to the 2011 incident. Later, he says that he understood the difference between the ordinary civil and criminal standards of proof. On the same page he states that he does not believe the fall contributed to the injury to the extent of 51 per cent, and goes on to state that it was significant “in the industrial interpretation of what is significant … [and] not trivial.” Still on that page, some confusion is expressed as to the identity of the forum (Dr McPhee gave evidence by phone), which is later resolved. On that page, Dr McPhee states once again that the fall was a significant contributing factor “under the Industrial Act”. When re-examined, Dr McPhee states once again that he cannot exclude a causal link between the 2010 fall and the 2011 incident. [17] It is inevitable in cases such as this that expert witnesses will play important, if not determinative, roles for both parties to a dispute. The outer limits of these roles must, however, be marked out by the law of evidence, and, in particular, the ultimate issue rule, according to which an expert witness must not seek to substitute himself or herself for the tribunal of fact, or for the Court. In the present case, it was not for the expert witnesses called on behalf of either party to say whether or not the 2010 fall suffered during the appellant’s employment, was a “substantial contributing factor” to the injuries disclosed in the wake of the 2011 incident. As the Deputy President pointed out on a number of occasions, this was a matter for the tribunal of fact. It was for the tribunal of fact to determine, on the basis of the evidence put before the Commission, whether or not the appellant’s fall was a substantial contributing factor to his subsequent personal injury. It was for the expert witnesses to illuminate, to the extent of their knowledge and expertise, the cause (or causes) of the appellant’s back condition. Accordingly, Dr McPhee’s appreciation of the legal aspects of the case is, if relevant, of no probative value. Insofar as his observations on these questions conflict with the more precise opinions informed by his expertise, this latter class of statements must be preferred. [18] The so-called concessions were not concessions at all. They were answers given in relation to an assumed state of facts concerning the issue before the Commission. A significant contributing factor – Dr Curtis’ evidence [19] In any case where there is a conflict of expert evidence the Commission must, inevitably, prefer one opinion to another in order that a decision can be rendered. It is not (and I do not suggest that it was case here) simply a matter of “adding up” the witnesses on each side. It does, though, require that the preference for one witness over another be founded upon a clear examination and appreciation of the opinions and their bases. In cases where there is a preponderance of expert evidence pointing in one direction then, in the absence of any disqualifying factor, it will often be the case that the Commission will be justified in accepting the majority view. -- 5 of 7 -- 6 [20] A key point of difference between Dr Curtis on the one hand, and Drs Todd and McPhee on the other, concerned their respective interpretations of the MRI scan of the appellant’s back taken following the 2011 incident. It was Dr Curtis’s opinion that the film, with the notable exception of the L4/5 disc protrusion, showed a spine in otherwise good order, in the light of the appellant’s age and occupation. Dr Curtis did not see evidence of degenerative change in the other discs. This was consistent with the written report of the radiologist who first considered the film. Drs Todd and McPhee disagreed with this interpretation of the MRI film, considering instead that the scan revealed degenerative change in a number of other discs, namely in L3/4 and L5/S1. Without more, there can be no clear basis for a finding that the Commission’s decision to prefer the opinions of Drs Todd and McPhee amounted to an error. [21] A second point of difference concerned the importance of the fact that the appellant did not report back pain between the 2010 fall and the 2011 incident. Dr Todd stated under cross-examination that this was a matter of great importance to him in coming to the view that the disc protrusion at the root of the 2011 incident was probably caused by underlying degeneration of the spine, quite separate from any “insult” suffered as a result of the 2011 fall: [Q:] So if [the appellant] suffered an insult falling off the scaffold that caused that disc to be far weaker and far more exposed to extrusion than all the other discs, would you not agree that there was time for that to occur? [A:] Yes, but if that was the scenario, then I would have expected a report of back pain. [Q:] But, see that’s the only thing you’re really hanging your hat on, isn’t it, Doctor, both yourself and Dr McPhee, the only thing you hang your hat on is the absence of pain during the period of the standing around watching the magician at the shopping centre, that’s correct; isn’t it? [A:] Yes, well I think that’s all you can hang your hat on. Earlier in the same period of cross-examination it was put to Dr Todd that for much of the period between the 2010 fall and the 2011 incident the appellant was “taking some significant pain-killing medication”, which Dr Todd agreed to have been the case. Dr Todd though that it was “possible, not probable” that this medication might have masked any back pain during this period. Dr Curtis did not comment at length on the pain or absence of pain in this period. Given that the appellant was indeed taking pain-killers throughout the period between the 2010 fall and the 2011 incident, it would have been inappropriate to make any finding based on the presence or absence of pain during this time. There is no suggestion that the Commission made such a finding. [22] A third point of difference, between Dr Curtis and Dr McPhee in particular, concerned the appellant’s history of back pain, which he had experienced at different times over a number of years. Dr Curtis drew a distinction between what might be called myofascial pain and orthopaedic pain. He said that instances of myofascial pain were not evidence of any underlying degenerative condition, and that importantly, the kind of pain previously reported by the appellant was different to that to which he said he felt in the wake of the 2011 incident. On this basis he was prepared to dismiss the appellant’s history of back complaints as irrelevant to -- 6 of 7 -- 7 determining the cause of the 2011 incident. Dr McPhee, on the other hand, appeared not to accept that myofascial symptoms might arise utterly independently of ligament strains, ligaments being taken to include discs. Accordingly, in coming to his view, he took the appellant’s history of back pain into account as an indication of an underlying degeneration of the spine. Here, once again, the Commission preferred the evidence of Dr McPhee. The appellant has, in this respect, failed to demonstrate that the Commission’s decision to do so was infected by error. [23] The appellant’s case concentrated on Dr Curtis’ evidence and the reasons for accepting it. The evidence called for the respondent was preferred by the Deputy President. That evidence, on a proper reading of the transcript and the reports which were tendered, leads to the conclusion that the appellant’s case was sufficient to establish the possibility that the personal injury complained of arose in the relevant way from the 2010 fall. But, it was insufficient to demonstrate, on the balance of probabilities, that the fall was a significant contributing factor. Costs [24] It was a further ground of appeal that the appellant should not have been ordered to pay the costs of the appeal to the Commission. The appellant’s application for compensation was rejected. The appeal to the Commission failed. There was nothing put by way of argument which would remove this matter from the ordinary case where costs follow the event. Orders [25] No error has been demonstrated in the decision of the Commission. The appeal is dismissed. [26] I do not regard the appeal to this Court as having been instituted vexatiously or without reasonable cause and so, pursuant to s 563 of the Act, there should be no order as to costs. -- 7 of 7 --