Casey v Blackwood (Workers' Compensation Regulator) [2013] QIRC 177

CITATION: Michael Casey AND Simon Blackwood (Workers' Compensation Regulator) (WC/2012/297) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal Michael Casey AND Simon Blackwood (Workers' Compensation Regulator) (WC/2012/297) INDUSTRIAL COMMISSIONER KNIGHT 22 November 2013 DECISION [1] This is an appeal by Mr Michael Ernest Casey ("the Appellant" / "Mr Casey") pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") against a decision of Workers' Compensation Regulatory Authority (Q-COMP) dated 4 July 2012 in which the Respondent confirmed an earlier decision by WorkCover dated 24 February 2012 to reject the Appellant's application, contending in respect of the claim that he did not sustain an injury within the meaning of that term in s. 32 of the Act. [2] Since the hearing of this application the Act has been amended with Q-COMP being abolished and replaced with Simon Blackwood (Workers' Compensation Regulator) (the "Regulator" / the "Respndent"). Brief History of the Appellant's Claim for Compensation [3] The Appellant was employed by G & R (Qld) Pty Ltd (Pools By Design) as a full-time plumber, performing work associated with the installation of pools. [4] Following a visit to the Golden Beach Medical Centre, the Appellant lodged an application with WorkCover on 17 September 2010 (Exhibit 1) for a lower back injury (first injury) which occurred ten days earlier on 7 September 2010 when he bent down to pick something up from the ground. [5] On 21 September 2010 the application was accepted as an aggravation of a pre-existing condition and the Appellant received compensation. [6] On 30 November 2011 Mr Casey's lower back injury was assessed by the Medical Assessment Tribunal (MAT). [7] The MAT noted the aggravation of the pre-existing condition had ceased effective as of the Tribunal Review Date of 30 November 2011. [8] Separately, the MAT also noted the Appellant appeared to be experiencing symptoms of a depressive nature when he became upset during the assessment process. Contact was made with the Appellant's local General Practitioner to raise concerns about the Appellant exhibiting depressive symptoms during the tribunal process. [9] In late December 2011, Butler McDermott Lawyers on behalf of the Appellant contacted WorkCover advising it did not consider the Appellant's claim should be finalised given the depressive symptoms exhibited by the Appellant during the MAT process and confirmed the Appellant would be attending a meeting with his General Practitioner to discuss his symptoms (Exhibit 2). [10] Following a consultation with his General Practitioner Dr Evan Jones on 29 December 2011, Mr Casey applied for compensation for a psychological condition (second injury) which he attributed to factors arising out of his first injury. [11] WorkCover issued a Statement of Reasons for Decision dated 24 February 2012 (Exhibit 3) rejecting the Appellant's claim for compensation. [12] The Applicant lodged an Application for Claim Review with the Regulator dated 25 May 2012 (Exhibit 4). [13] The Regulator provided its Reasons for Decision dated 4 July 2012 (Exhibit 5) which confirmed the WorkCover decision and indicated the Appellant did not sustain an "injury" within the meaning of that term in s. 32 of the Act. It is against this decision of 4 July 2012 that the Appellant appeals. Issues for Determination and Onus of Proof [14] The key issues for determination are as follows: -- 1 of 9 -- 2 (a) whether the Appellant suffered an "injury", namely a psychiatric or psychological injury, within the meaning of that term in s. 32 of the Act; (b) whether the alleged injury sustained by the Appellant arose out of or in the course of employment within the period of time he was suffering from his first injury (i.e. aggravation of a pre-existing lower back condition); and (c) whether, in relation to the psychiatric injury which the Appellant claims arose out of or in the course of the specific period of employment during which he was suffering from his first injury, that his employment was a significant contributing factor to the contraction of that injury. [15] The Appellant carries the burden of proof on the balance of probabilities: see Chattin v. WorkCover Queensland1. The Appellant must prove, on the balance of probabilities, that his psychological injury arose out of and within the period of his accepted physical injury and that the claim is one for acceptance. Relevant Statutory Provisions [16] Section 32 of the Act relevantly provides as follows: "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.". Nature of Hearing [17] The appeal to the Commission is by way of a hearing de novo. Mr Casey and Dr Jones' Evidence [18] The Appellant gave evidence he was employed on a full-time basis by G & R (Qld) Pty Ltd (Pools By Design) to undertake plumbing work associated with pool installation. [19] On 7 September 2010 Mr Casey was using a pick and shovel to dig a trench approximately 400 millimetres deep and 300 millimetres wide at a private residence in Kawana when he hurt his back undertaking manual work. [20] Mr Casey's evidence was that he had to lie down on the footpath where his car was parked for half an hour after he experienced some back pain when he: "...bent down to pick something up, and I got a stabbing sensation in my lower spine and funny feeling from my right-hand knee, up to my - the top of my back." (D1, P15, L10). [21] He said the sensation was quite severe and "totally different" to previous pain he had experienced in Easter of the same year when had experienced some pain in the left-hand side of his back. [22] Mr Casey's General Practitioner, Dr Jones, acknowledged there was no record of consultation around the Easter period but confirmed a record of a note in the Appellant's medical records during a consultation with a Dr Hlaing at Golden Beach Medical Centre in September 2010 indicating Mr Casey had experienced back pain six months earlier. [23] The Appellant reported going home and resting overnight after the incident on 7 September 2010, but when he attended work the following morning he was sent home early because: "...they could see I was folded over, I couldn't walk properly.". [24] Mr Casey's evidence is that he was terminated by his employer via text two days after his first injury occurred. [25] Under cross-examination, he conceded his employer, Mr Fogarty, had met with him prior to the 7 September 2010 incident to discuss an allegation concerning Mr Casey being paid $1000.00 to install a pump he had allegedly stolen from a job being undertaken by the company. Mr Casey maintained he believed the matter had been resolved when pressed about whether Mr Fogarty continued to hold concerns about the allegations on or around the time of his first injury. 1 Chattin v. WorkCover Queensland (1999) 161 QGIG 531 -- 2 of 9 -- 3 [26] Mr Casey's evidence is that he attended a number of physiotherapy sessions in the period immediately following his injury, but was subsequently referred to the Golden Beach Medical Centre where he attended a consultation with Dr Geoffrey Bennet on 17 September 2010 who sent him to get some scans and x-rays on his back. [27] Mr Casey's medical notes (Exhibit 6) include the following record for 17 September 2010: "..workcover qld medical cert and invoice faxed and posted 17/09/10 new claim.". [28] Dr Jones gave evidence the medical records of patients at the Golden Beach Medical Centre were stored electronically and that whenever a patient visited the practice, details of the consultation and any discussions were recorded in a patient health summary along with any incoming or outgoing correspondence. [29] Between November 2010 and November 2012 Mr Casey attended 65 sessions of physiotherapy treatment and also participated in a suitable duties program which involved undertaking an assistant sports coaching role at a local college from February to August 2011. In addition to receiving a spinal injection he was also referred to Dr Johnson (a neurosurgeon) by his GP, where both he and the specialist discussed various options, including the prospect of an operation, to alleviate his back pain. [30] Whilst he was unable to identify a specific date, Mr Casey gave evidence that not long after the injury he felt his life was in turmoil and in or around September 2010 he noticed that he was struggling to get out of bed and did not feel like being around people. [31] Dr Jones gave evidence that a report prepared by Dr Johnson on 12 January 2011 (Exhibit 7) in which he recorded Mr Casey describing his "...quality of life as poor. At times he feels depressed.", as being consistent with his own observations of Mr Casey around this time, further highlighting a note made by Dr Kimberly Harper on 22 February 2011 referring to "workcover: stress, back injury.". [32] Whilst Dr Harper was not called to provide evidence, Mr Casey's medical notes (Exhibit 6) include the following record by Dr Harper on 22 February 2011: "workcover stress - back injury.". [33] It is unclear on the evidence as to whether the reference to stress was in relation to the back injury, Mr Casey's engagement with WorkCover, or for some other reason. [34] When he was asked to elaborate on his comment about his life being in turmoil, Mr Casey said: "...Well, my biggest fear was not being able to support my kids so you know - and that was my biggest problem. Like, I'm a hands-on dad, so ---" (D1, P22, L20-30). [35] Mr Casey gave evidence he spoke "early in the time" to Dr Jones about his concerns, stating that: "...he (Dr Jones) knew I was struggling with what was happening." (D1, P2, L40-50). [36] Under cross-examination Mr Casey said he continuously spoke about his mental state with Dr Jones but was unaware as to whether Dr Jones made any notes about their conversations. [37] In cross-examination on the matter of any notes Dr Jones may have made in relation to his observations of Mr Casey's mental health before 29 December 2011, Counsel for the Respondent asked: "It would be reasonable to suggest, would it not, that if as of the 18th of January 2011 you thought Mr Casey was in that unhappy position, you would have made a note of it, would you not? -- If I felt that he had overt depression that required medication, then yes, I may - may well have made note of it…" (D1, P64, L50-60). [38] Mr Casey confirmed he did not speak to anyone else about his concerns aside from Dr Jones, but that he got worse when he did not recover from the rehabilitation treatment he was receiving during the time the claim for his first injury was active. [39] Later, under cross-examination, Mr Casey intimated he may have spoken to his solicitors about his mental health problems, however when pressed he was unable to provide any specific details in relation to dates or conversations. [40] Mr Casey gave evidence he attended a review with a Medical Assessment Tribunal (MAT) on 30 November 2011 and recalled breaking down and crying uncontrollably during the MAT hearing, and again when he met with his GP, Dr Jones some weeks later. -- 3 of 9 -- 4 [41] The medical notes recorded by Dr Jones in relation to a consultation with Mr Casey on 29 December 2011 (Exhibit 6) include the following: "...feels very down about his injury, treatment by Workcover and his resultant life situation feels teary when he thinks about his children and inability to support them; poor energy had difficulty sleeping after the interview with qcomp; has had some black thoughts particularly after talking with qcomp feels frustrated and doesn't believe they have been helpful with his rehab; discussed situation and depressive symptoms precipitated by injury…". [42] Under cross-examination, Dr Jones indicated he did hold discussions with Mr Casey about other factors (i.e. domestic matters) that may have been stressing the Appellant at the time, but he was unable to point to any records of those discussions within Mr Casey’s patient records nor any formal record of a diagnosis of depression within the medical notes other than the comments recorded against the consultation record with Mr Casey on and after 29 December 2011. [43] Under cross-examination, Dr Jones agreed that the first time there was any reference to depression in Mr Casey's medical notes was on 8 December 2011, after the Regulator had rung his practice expressing concerns about Mr Casey's mental state and a subsequent appointment was made for the Appellant to speak with Dr Jones on 29 December 2011. [44] In relation to how the Appellant's psychological condition progressed from this point and questions around the emergence of symptoms before this time, Dr Jones said: "-- Well, I - I think it would be fair to say that I'd been talking to Michael for a long time about how he'd been coping with - with the situation and about, you know, his - the various sorts of stressors, the development of a, you know, a therapeutic relationship, supported relationship to help people through this - this sort of situation, but certainly, you know, at that point in time, you know, his symptoms were such that, you know, I've documented them here and we talked about the need to move onto medication." (D1, P66, L20-40). [45] Whilst giving his evidence, Mr Casey made some observations about the manner in which a number of medical examinations had been undertaken by specialists giving evidence in his Appeal, stating Dr Coroneos (a neurosurgeon) had examined him for 12 minutes and undertaken only three tests, that Dr Keays (an orthopaedic surgeon) had tried to talk him out of getting an MRI and that Dr Johnson (a neurosurgeon) was: "...completely different, like, he sat there and listened to what was happening with me and, yeah, he seemed more interested." (D1, P25, L1). [46] Under cross examination, Mr Casey suggested that elements of Dr Coroneos' report were false but was unable to identify any of the falsities when asked to point them out, instead maintaining the Doctor had only undertaken three tests and had been late for the appointment. He also conceded he was unable to recall the date, the time or the month of his appointment with Dr Coroneos notwithstanding his claims about the duration of the appointment. [47] Likewise, Mr Casey suggested there were falsities in Dr Keays' report pointing to the opinion of Dr Keays where he had stated the incapacity associated with the Appellant's first injury had come to an end as an example when asked to highlight which part of the report was false. [48] Under cross-examination, Mr Casey denied ever telling Dr Keays that he was "improving quite nicely until he picked up his son recently", but conceded he had a conversation about the weight of his son after telling the Doctor he had experienced a stabbing pain in his back when his son ran and jumped up on him for a cuddle. [49] Whilst Mr Casey agreed he had seen Dr Keays in November 2010 he was unable to recall the date when his son had jumped up on him. [50] Mr Casey also conceded he had previously complained to WorkCover about a psychiatrist called Dr Chung who had prepared a report that was not as favourable as the one prepared by Dr Martin, another psychiatrist providing medical evidence in the proceedings. [51] On hearing Mr Casey's description of some of the consultations he had attended with Dr Coroneos and other specialists, Dr Jones gave evidence he had expressed concerns to Mr Casey that: "-- Well, that I - that my concern was that - that some of these assessments were really not up to standard and that - that some of the specialists views by WorkCover seemed to be more like hired guns to - to as I say they had a certain particular point of view about - about these types of injuries." (D1, P51, L30). -- 4 of 9 -- 5 [52] Under cross-examination and in relation to the Appellant's first injury, Dr Jones maintained that Dr Keays' diagnosis of the Appellant's injury as an aggravation of Lumbar Spondylosis with a cessation date of the work related injury being 18 November 2010, as well as Dr Coroneos' opinion that any ongoing symptoms suffered by Mr Casey were of constitutional origin, were both wrong. [53] Dr Jones opined the Appellant's continuing symptoms were referrable to his initial injury and was of the view that if he had not had the injury he never would have suffered any ongoing pain and discomfort. [54] Under cross-examination he agreed his comments about Mr Casey not ever becoming symptomatic were speculative and that it was possible that once an aggravation or an exacerbation of a degenerative condition occurred, that ongoing pain could be a possibility, and further, in relation to a question around an aggravation of the type suffered by Mr Casey generally lasting between six and eight weeks, that it was possible that ongoing pain after this time could be attributable to a pre-existing degenerative problem or a mild protrusion that could resolve with rest. The Specialist's Evidence [55] Dr David Johnson, a neurosurgeon since 2007 gave oral evidence and submitted three reports (12 January 2011, 4 April 2011 and 28 June 2011) for the Appellant. [56] Medical Reports (13 March 2012, 23 April 2012 and 15 May 2012) prepared by Dr Chris Martin, a psychiatrist, were tendered by the Appellant, however he was not required for cross-examination. [57] Dr Tony Keays, an orthopaedic surgeon and Dr Michael Coroneos, a neurosurgeon since 1988 provided oral evidence for the Respondent. [58] In his report dated 23 May 2011 (Exhibit 8), Dr Coroneos:  agreed with an assessment of Dr Keays (18 November 2010) that the ongoing symptoms were of constitutional origin and the work related incapacity had ceased as of 18 November 2010;  opined that all pre-existing changes in respect of degeneration were constitutional and pre-dated the first injury date of 7 September 2010; and  confirmed that any ongoing symptoms or reported incapacity did not relate to the effects of the incident of 7 September 2010. [59] Dr Coroneos estimated that 40 percent of adults have moderately advanced degeneration in the form of disc bulging and protrusions with many of these people being asymptomatic. His evidence went into some detail about the differences between “aggravation” and “exacerbation” (from a medical perspective) in so far as back injuries were concerned, eventually concluding in relation to Mr Casey's injury that: "…and in a case such as this where we assume there's a soft tissue injury, or an exacerbation, based on the history given by the patient, most patients would be expected to have settled by six to eight weeks. So to answer your question, it's a little bit hard, it's a combination of clinical experience, combination of teaching, combination of what we read in the literature. But there's no - you know, there's no hard rules as to how many weeks. Some patients get better within a day." (D1, P71, L1-10). [60] Under cross-examination by Counsel for Appellant as to whether Mr Casey's injury on 7 September 2010 might well have been a discreet injury, Mr Coroneos said: "-- The doctor's certificate stated that he had a low back strain. That's - that's what - that's one thing that I think needs to be emphasised, that the - the treating general practitioner's diagnosis was a lower back strain, emphasising back pain. So that's - that's something that I think is very important. Now, you've asked me whether or not it's a discreet injury and again we have to go back to basics. There's - there's a soft tissue injury, which is a self-limiting strain to the supporting structures of the spine, and that's - that's called a soft tissue injury. Then we have exacerbation to pre-existing degeneration in which there's no structural change, but the injury causes pain to emanate from the degenerative structures, including the discs and facet joints, and that usually settles over a period of up to six to eight weeks. Then we have aggravation, where there's a structural injury and there's a permanent change in function and these patients have long-term pain. And then we have significant or acute disc pathology where there's a ruptured disc and these are the patients that come to surgery. So, there's basically four categories. I would have placed this patient in category 1 or 2, and having seen the doctor's certificate of low back strain, I assume that the doctor observed clinical signs suggesting of a soft tissue injury in order to diagnose a low back strain." (D1, P73-74, L30-1). -- 5 of 9 -- 6 [61] When pressed, Dr Coroneos said if he had to choose then it was more than likely Mr Casey had suffered a soft tissue injury at that time based on the comments from the treating GP on the medical certificate, maintaining his position that the work related incapacity associated with the injury would have more than likely ceased within six to eight weeks of the 7 September 2010 injury and that any ongoing reported pain could be attributable to any number of reasons including Mr Casey's degenerative condition, his existing Spondylolisthesis or litigation. [62] In response to cross-examination around Mr Casey's concerns about the 12 minute duration of his appointment with Dr Coroneos, he denied spending only 12 minutes with the Appellant and said: "-- Yeah, well I'd have to get my diary from 2011, to see what time I saw the next patient. But I saw this patient at 11.25 a.m. and I have four pages of handwritten records. Four pages, I give his height, his weight, straight leg raising, measured his leg circumference, leg lengths, did all his reflexes. Did very detailed neurological examinations. Well, in terms of-----?-- So I take great offence to that implication, because I do very thorough examinations, take very detailed histories of everything. Well, Mr Casey suggests that your examination consisted of three - three items which I'll tell you and then I'll as you to comment?-- Yes, tell me. Firstly, he says that you asked him to walk away from you so you could observe him from behind. He says then you tested his reflexes in his knees with a hammer and thirdly, he says that you observed him do a straight leg raise?-- You're right. And he says that was the extent of the examination?-- I - I observed the patient sitting, standing and walking. I examined the external appearance of his spine. I measured his height, I measured his weight. I calculated his body mass index, I then checked his plantar Hoffman, Chaddock and Gondar reflexes. I then checked his----- Doctor, can I just stop you there. So, those - those three things I mentioned to you, are you saying that there was more extensive-----?-- Of course there was. -----examination?-- Of course there was. I checked his vibration sense, I checked his pin prick sensation, I checked position sense, I checked single fibre examination. I used my Wartenberg rotary wheel, I checked his straight leg raising, I checked his peripheral pulses. I measured his leg in terms of girth and I measured the length of his legs. So, I would suggest to you that your client is not giving the correct history of what happened. So, I put it to you that you spent only 12 minutes with him and-----?-- No, I put it to you that that is absolutely false." (D1, P81-82, L40-30). [63] In re-examination, Dr Coroneos gave evidence his records indicated he saw his next patient at 11.55am. and that he generally spent 25 - 30 minutes with each patient and would go home and dictate his notes at night. [66] Dr Johnson, a brain and spinal neurosurgeon examined Mr Casey following a referral from Dr Jones in January 2011. [67] In his report dated 12 January 2011 (Exhibit 7) Dr Johnson wrote: "He (Mr Casey) tells me his quality of life is poor. At times he feels depressed.". [68] In his oral evidence, when questioned by Counsel for the Appellant if he could remember how Mr Casey conveyed these feelings to him, Dr Johnson said: "…but I couldn't be certain how he conveyed it to me, as per the standard general questioning in terms of functional abilities at least in relationships and matters of that nature.". [69] In the same report (Exhibit 7) Dr Johnson referred to Mr Casey's MRI and CT scans showing a "discopathy at the L4/L5 level with a prominent central bulge and posterior annular high intensity zone and early disc dissection.". [70] A later progress report dated 4 April 2011 (Exhibit 10) recorded some comments by Mr Casey's to Dr Johnson in relation to being frustrated that he was unable to return to his previous employment. [71] A further report dated 4 June 2011 (Exhibit 11) confirmed multilevel degenerative disc disease. In the same report Dr Johnson formally recorded his agreement with Dr Coroneos' view that the changes picked up in the -- 6 of 9 -- 7 MRI scan were degenerative in nature. In further oral evidence relating to the 4 June 2011 report, Dr Johnson agreed with the proposition the degeneration in Mr Casey's lumbar spine was aggravated by his work incident. [72] In the same report Dr Johnson confirmed Mr Casey was interested in pursuing further treatment options including surgical intervention. [73] In response to questioning from Counsel for the Appellant in relation to Mr Casey's frustration with his injury, Dr Johnson said: "Mmm. And so was that similar to the sort of things he told you, at the time you first saw him, when you said that he felt depressed?-- I hadn't made a comment on his mental state, apart from the frustration, I haven't made a comment on his mental state in that report, on the 4th of April, 2011." (D1, P91, L1-10). [74] In cross-examination by Counsel for the Respondent around the nature and symptoms of a degenerative back, Dr Johnson agreed with the propositions that:  a degenerative back may or may or may not become symptomatic;  a variety of activities can cause an asymptomatic back to become symptomatic;  the activities could range from something as simple as coughing and sneezing to physical work such as bending;  the symptoms can be mild or severe and in the case of a mild disc protrusion, after a few days rest might disappear;  the Appellant's back pain in Easter could be reflective of one of these circumstances having regard to his degenerative condition;  the Easter event where Mr Casey complained of pain might have signalled the onset of symptomology in a degenerative back; and  the activity on 7 September 2010 may well have led to his degenerative back becoming symptomatic. [75] However, it was also Dr Johnson's view that Mr Casey had never returned to his base line function after the workplace injury of 7 September 2010 and that he attributed any ongoing pain and disability to the damage that occurred at the time of the injury. [76] Conversely, Dr Keays who examined Mr Casey very early on 18 November 2010 and prepared a report dated the same day (Exhibit 15) was of the view the Appellant's CT results showed established degenerative changes in his lumbar spine, but that his work-related incapacity had ceased as at 18 November 2010 and the Appellant would be capable of returning to suitable duties or host employment, notwithstanding Mr Casey appeared to be somewhat reluctant to do this. [77] Dr Keays' oral evidence was there were any number of activities ranging from brushing teeth to bending, lifting or twisting that might aggravate a degenerative back. [78] In the Appellant's case, Dr Keays expressed the view that a period of six to eight weeks, with an outside limit of three months would be a reasonable timeframe within which an injury such as Mr Casey's would subside. [79] In his report dated 18 November 2010 (Exhibit 15) Dr Keays noted the Appellant told him his back: "…was settling down quite nicely until he picked up his son just prior to seeing me in November and he - a bit vague about the exact date. But it would seem to be a couple of weeks before seeing me and he said admittedly he picked up his son who weighs 25/26 kilos. There was immediate reoccurrence of his lower back pain. So, I got the impression that his back had been settling down quite nicely until he picked up his son with immediate reoccurrence of his symptoms. Once again, I would have expected that to be of relatively short duration." (D2, P4, L1-20). [80] Dr Keay's oral evidence was that Mr Casey had told him it was getting better. [81] Under cross-examination Dr Keays maintained it was more likely the Appellant had sustained an exacerbation of a pre-existing degenerative change (Lumbar Spondylosis) which was asymptomatic prior to the work episode. When pressed, Dr Keays said: "-- I'm saying that his back pain was in the nature of an exacerbation brought on by his work activity; brought on by lifting the child; that this exacerbation is usually of a temporary nature; that his ongoing symptoms relate to established degenerative changes which have been demonstrated radiologically." (D2, P10, L20-40). [82] Dr Keays was also of the view that he would expect Mr Casey to continue experiencing episodes of spinal discomfort due to the established degenerative changes in his lower back. -- 7 of 9 -- 8 [83] In re-examination Dr Keays expressed the view the development of acute lower back pain in Mr Casey after bending over to pick up a piece of foam indicated the Appellant's condition was compatible with an exacerbation and, the later incident when he picked up his son may well have easily exacerbated his lumbar spine. [84] During the proceedings the Appellant also tendered three reports prepared by Dr Chris Martin, the psychiatrist. [85] In his report dated 13 March 2012 (Exhibit 12) Dr Martin reported the Appellant had expressed considerable disappointment with a range a medical and psychiatric assessments he had undertaken to date and had described a number of current depressive symptoms he was experiencing, but was hesitant to take any medication. [86] A progress report dated 23 April 2012 (Exhibit 13) noted an improvement in his condition with limited reference to any psychological symptoms. [87] In his report dated 15 May 2012 (Exhibit 14) Dr Martin noted Mr Casey's symptoms were consistent with a diagnosis of adjustment disorder with depressed mood which had arisen out of his back pain. In his report, Dr Martin noted he was not prepared to comment on the causation of his back pain or whether it was work related. Consideration and Findings [88] I accept the submissions of the Respondent that the Commission must be satisfied on the balance of probabilities that Mr Casey's diagnosed psychological condition came into existence whilst he was suffering from his first injury which occurred on 7 September 2010. [89] Further, that the injury itself (adjustment disorder) or symptoms of it which were so severe to be more than just emotions ordinarily experienced after an unpleasant life event must have existed during the period over which the injury existed. [90] In this regard the Respondent's position is that the diagnosable psychological injury came into existence at a time after the aggravation ended; and any on-going back pain is attributable to the underlying degeneration or some other cause. [91] The Appellant has submitted it is more likely than not, on the balance of probabilities and in the absence of any evidence of an intervening event, the ongoing back pain has been caused by the first work incident of 7 September 2010. [92] In my view, the medical evidence, in particular, the evidence of Dr Keays and in part, that of Dr Coroneos supports the view Mr Casey's first injury arose due to an exacerbation of a pre-existing degenerative change (Lumbar Spondylosis) which was asymptomatic at least until Easter 2010. [93] There is no argument that the Appellant's initial Workers Compensation claim was accepted as an aggravation of a pre-existing condition. [94] The evidence of the Appellant supports the conclusion that, notwithstanding the comments in Dr Johnson's report dated 12 January 2011 (Exhibit 7) which noted in relation to Mr Casey that "at times he feels depressed", there is not sufficient evidence before the Commission to support the conclusion the Appellant was suffering a secondary psychological injury arising out of the Appellant's employment during the period of the first injury. [95] Dr Johnson's oral evidence when questioned by Counsel for the Appellant around the context in which Mr Casey conveyed these feelings to him, said: "... but I couldn't be certain how he conveyed it to me, as per the standard general questioning in terms of functional abilities at least in relationships and matters of that nature", and later, in regard to a further report where he'd noted Mr Casey had expressed his frustration on not being able to return to work: "I hadn't made a comment on his mental state, apart from the frustration; I haven't made a comment on his mental state in that report, on the 4th of April 2011.". [96] It is unclear on the evidence as to whether the comments recorded by Dr Johnson on 12 January 2011 in relation to Mr Casey’s mental state were made as a result of Mr Casey’s back pain and/or other factors which may have been upsetting the Appellant at the time. -- 8 of 9 -- 9 [97] The evidence of the Appellant further supports the conclusion that it was not until Mr Casey attended the MAT review in late November 2011 at the conclusion of which the Tribunal determined the aggravation of the pre- existing condition had ceased effective at 30 November 2011, that any notable records in relation to depressive symptoms or depressive illness as they related to Mr Casey's employment or the injury arising out the incident on 7 September 2011 were recorded in the Golden Beach Patient Summary for the Appellant. [98] Under cross-examination and in response to questions around the existence of any notes Dr Jones may have made and recorded in relation to his observations of Mr Casey's mental health before 29 December 2011, Counsel for the Respondent asked: "It would be reasonable to suggest, would it not, that if as of the 18th of January 2011 you thought Mr Casey was in that unhappy position, you would have made a note of it, would you not? -- If I felt that he had overt depression that required medication, then yes, I may - may well have made note of it…" (D1, P64, L50-60). [99] The evidence provided by Dr Keays', the first medical specialist to examine the Appellant, was consistent and thorough. I accept his evidence the Appellant told him his injury was improving until he picked up his son. Under cross-examination the Appellant's own evidence supports the conclusion that there was some interaction with his son which at the very least further exacerbated his first injury. [100] I also accept the evidence of Dr Keays and Dr Coroneos that Mr Casey's work-related incapacity ceased on or around 18 November 2010 and any residual and ongoing back pain experienced by the Appellant since this time is more than likely attributable to factors such as Mr Casey's degenerative condition and his existing Spondylolisthesis. [101] I find the Appellant did not suffer a psychological or psychiatric injury arising out of or in the course of employment within the specific period of time he was suffering from his first injury (i.e. aggravation of a pre- existing lower back condition). [102] I accept the Respondent's submissions that even if the evidence provided by Dr Jones and Mr Casey in relation to verbal conversations they may have held around Mr Casey's mental state before 29 December 2011 is accepted on point, it was not sufficient to demonstrate that any concerns discussed by Mr Casey in that period amounted to any more than ordinary human concern about life events or that employment was a significant contributing factor to the contraction of any depressive symptoms. [103] I am not satisfied there is sufficient evidence before the Commission to conclude, on the balance of probabilities that the Appellant suffered a psychiatric or psychological injury as a result of the aggravation of a pre-existing condition during the period 7 September 2010 until 18 November 2010. Orders [104] In relation to Appeal WC/2012/297, I order: 1. that the appeal be dismissed; 2. that the decision of the Regulator dated 4 July 2012 be confirmed; and 3. that the Appellant pay the Regulator's costs of an incidental to the appeal to be agreed or failing agreement, to be the subject of a further application to the Commission. M.L. KNIGHT, Industrial Commissioner Hearing Details: 2013 20 February 2013 21 February 2013 25 March (written submissions received) Released: 22 November 2013 Appearances: Mr T. Nielson of Counsel, instructed by Mr P. Boyce of Butler McDermott Lawyers for the Appellant. Mr F. Lippett of Counsel, directly instructed for Simon Blackwood (Workers' Compensation Regulator). -- 9 of 9 --