Evans v Q-COMP [2013] QIRC 66

CITATION: Martin Evans AND Q-COMP (WC/2012/170) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 appeal to commission Martin Evans AND Q-COMP (WC/2012/170) COMMISSIONER THOMPSON 30 April 2013 DECISION Introduction [1] On 30 April 2012, Martin Evans (Appellant) filed with the Industry Registrar a Notice of Appeal pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q-COMP) dated 5 April 2012. Q-COMP had confirmed the decision of JBS Australia Pty Ltd (JBS), TH Insurer, to reject the Appellant's Notice of Claim for Damages in accordance with s. 275 of the Act. Relevant Legislation [2] The Legislation pertinent to this Appeal is ss. 32 and s. 275 of the Act: "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. (2) However, employment need not be a significant contributing factor to the injury if section 34(2) or 35(2) applies. (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; (ii) a disease; (iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation; (c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing; (d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury; (e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease; (f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation. (4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. (5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances - (a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment; (b) the worker's expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the worker's application for compensation.". "275 Notice of claim for damages (1) Before starting a proceeding in a court for damages, a claimant must give notice under this section within the period of limitation for bringing a proceeding for the damages under the Limitation of Actions Act 1974. -- 1 of 17 -- 2 (2) The claimant must - (a) give the notice of claim in the approved form to the insurer at the insurer's registered office; and (b) if the worker's employer is not a self-insurer, give a copy of the notice of claim to the worker's employer.". Nature of Appeal [3] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls to the Appellant. Evidence [4] In the course of proceedings, evidence was given by five witnesses. [5] The Commission, in deciding to précis the evidence of each of the witnesses and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety. Witness Lists [6] The witnesses for the Appellant were as follows: • Martin Evans (Appellant); • Andrea Evans (Mrs Evans); and • Dr Ross Phillipson (Dr Phillipson). [7] The witness for Q-COMP was as follows: • Dr Jennifer Gunn (Dr Gunn); and • Dr Anthony Wilson (Dr Wilson). Additional Material [8] In relation to additional material put before the proceedings, the following documents were tendered with the agreement of the parties and the authors of the documents were not required for the purposes of cross- examination: • Report of Dr Greg Gillett, Orthopaedic Surgeon, (dated 1 April 2011) and tendered on behalf of the Appellant; and • Notes Report (Officers Report) prepared by Constable Matthew Hawkins (dated 14 March 2012) and tendered on behalf of Q-COMP. Appellant Opening [9] Ms Alexandra Marks, of Counsel, in a brief opening address made reference to the following: • the Appeal related to a workplace incident that occurred on 31 May 2010; • JBS had accepted a claim for a physical injury arising out of the incident; • the acceptance of the claim related to an aggravation of a pre-existing lumbar spondylosis and disc protrusions; • the subject matter of the Appeal is whether the Appellant had also sustained a psychological/psychiatric injury; • evidence adduced by the Appellant will show that the Appellant had sustained a psychiatric injury that meets the criteria for a diagnosis of a pain disorder associated with psychological factors and a general medical condition; • Dr Phillipson, in the most recent of his reports, indicated that the Appellant is now partially in remission; • After having expressed the view that in the initial stages after the physical injury, the Appellant had displayed signs of a mild adjustment disorder with a depressed mood. Dr Phillipson was now of a view that this had now resolved and he was in complete remission; and • Drs Phillipson and Gunn share the view that the Appellant has Alcohol Abuse Disorder which the Appellant accepts is at least partially pre-existing. -- 2 of 17 -- 3 Evans [10] The Appellant gave evidence of being married with three children aged 17, 15 and 10 years. He had commenced work with Swift Australia Pty Ltd (Swift) as a night cleaner in March 2010 having previously been in their employ in 2007. As a Night Cleaner, his hours of work were 8.30 p.m. to 5.30 a.m. Monday to Friday with some Saturday work available (as overtime) which was worked between 2.00 p.m. until 10.00 p.m. The duties undertaken by him included: • hot hosing; • crawling around all types of equipment; • sweeping; • picking up meat and blood; and • general cleaning duties. [11] In addition to his work with Swift, he operated a carpet cleaning and pest control business he had previously purchased from his parents. For a time, he had an involvement as a Roof Insulation Installer, but that had ceased when the Federal Government stopped making grants available to households. [12] On Monday 31 May 2010, whilst undertaking cleaning duties at Swift, he "slipped and twisted" when getting out from under a viscery table feeling instant pain in his back. He continued working for the rest of the week by taking over the counter painkillers ("the strongest ones"). About a week after the incident, he attended a Doctor, informing him that he had a sore back and was given two weeks off work. The Appellant recalled that he returned to work after one week off and was placed on light duties in the laundry where he handed out clothes to staff, folded and put washing away. There was said to be some pain associated with the work due to bending, lifting and walking. For the next couple of weeks he alternated between light duties and his normal role, also having one week off in that period. [13] About three weeks after the work incident, he woke up one morning and could not move his leg requiring him to seek further medical attention. The Doctor sent him for a CT scan after which an appointment was arranged with Dr Wilson, an Orthopaedic Surgeon. [14] In evidence relating to the initial consultation with Dr Wilson, it was said upon examination of the "x-rays", Dr Wilson had allegedly said words to the effect "You're fucked". He saw Dr Wilson on a further two or three occasions during which time he was prescribed pain killers. [15] Around this time he became moody, snapping at his wife and children for no apparent reason, which resulted in him seeking medical assistance from a General Practitioner. There were also some pressures as a result of his financial circumstances due to his income being reduced from a "couple of grand a week" to about $900 per week. The reduction of income was due to his inability to perform carpet cleaning work following the injury to his back. [16] Evidence was given of further medical treatment for his condition from Dr Zellor (Orthopaedic Surgeon) and a number of visits to a Physiotherapist. A considerable amount of time was spent away from work during which time he had tried to exercise without much success. [17] On his employment circumstances prior to 31 May 2010, the Appellant gave evidence that he would cease work at Swift at 5.30 a.m. arriving home around 6.00 a.m. After participating in a family walk, he would have a coffee and go of to his carpet cleaning work at around 8.30 a.m. He would generally be occupied until around 2.00 p.m. when he would undertake a range of family activities before having dinner and heading off to work at Swift in his cleaner role. In between arriving home in the afternoon and starting the night shift he would "squeeze" in two to four hours sleep. [18] In terms of other activities prior to the 31 May 2010 incident he stated that he was in the middle of renovating the house, looking after his wife who could not leave the house without someone accompanying her, and visiting friends. [19] Since his accident, his relationship with his wife had become strained due to his moods as a result of being in pain 24 hours a day. In terms of his alcohol consumption, the evidence was that since 31 May 2010 there had been a dramatic increase to the level prior to that event [Transcript p. 1-31]. Prior to the accident, he would buy a carton of beer (30 cans) each week (as indicated on a pre-employment form with Swift). The intake of alcohol after the incident changed with him consuming eight 1.25 litres of homebrew whisky which was said to assist with his pain management. Evidence was given that the Appellant has also (since 31 May 2010) increased his usage of tobacco products. -- 3 of 17 -- 4 [20] The Appellant gave evidence that prior to 31 May 2010 he had no history of back pain but had experienced muscular pain in his shoulders and lower back when using the "carpet wand". He had never sought medical treatment for a back complaint nor had he taken time away from work [Transcript p. 1-36]. In terms of his medication, in addition to pain killers, he had also, since 31 May 2010, at times been on anti-depressant medication. [21] Under cross-examination, the Appellant indicated that in the period of his employment with Swift he had existed on two to four hours sleep each working day for 11 months. In regard to his past economic loss as it related to his claim for damages, he gave evidence that the loss was $948 net per week for the period 31 May 2010 to 6 September 2011 (employment with Swift) and the quantum for his self-employment in carpet cleaning, pest control and insulation had, after expenses, netted him the amount of $50 per week. The Appellant acknowledged that he had provided an investigator a statement indicating that he was earning $1,600 per week ($80,600 annually) from his self-employment [Transcript p. 1-52]. [22] On the extreme pain first felt in his leg in late June 2010, the Appellant accepted that he had visited a General Practitioner on 26 June 2010 and in the course of the consultation did not advise the Doctor of any specific event or incident. The same applied when he was seen by Dr Wilson. When examined by Dr Gillett, he accepted that he related the injury to lifting two legs of beef (30 to 40 kilograms) on to a table. This incident was said to have allegedly occurred when the Appellant was on a suitable duties plan [Transcript p. 1-54] with him going on to state when asked if he had made the story up: "No. The only thing - the beef was lifted. Now, it's not the fact that it would have caused any damage because if it had have I would have - or felt it straight away, I suppose, but the - it was just a thought that something that dawned on me ages after it had happened, that was all." [Transcript p. 1-55]. [23] The Appellant later accepted that the (lifting beef) incident had not happened [Transcript p. 1-56]. [24] Questions were put to the Appellant in respect of a motor vehicle accident that occurred on 24 June 2011 which he was involved in. He accepted that on the day of the accident he had visited a General Practitioner, informing the Doctor that he had exacerbated back pain from the accident. He denied initially that he had made a claim through his compulsory third-party insurance, but later accepted that he had completed a claim form. It was further accepted by the Appellant that he had reported the accident to Police on 14 March 2012 at which time he told the Police Officer that in late February 2012 he had started to feel pain in his hand, arm and fingers [Transcript p. 1-60] although he had never mentioned this pain to any of the Doctors that had given treatment to him in that time period. [25] In terms of alcohol consumption, the Appellant denied that he had consumed alcohol to excess, although it was the case that he had three drink driving convictions in the 1990's, but he had settled down after meeting his wife [Transcript p. 1-63]. Prior to 31 May 2010 he had not been irritable or angry at home. On visits to Drs Gunn and Phillipson, he confirmed that he had told them that the pain he was experiencing became worse at the end of June 2010. [26] In re-examination on the matter of an increase in pain around 27 June 2010 that was mentioned to Dr Gillett in April 2011, the Appellant could not recall whether he was on suitable or normal duties at the time. On having told Dr Gillett that the worsening of the pain related to lifting two legs of beef on to a table his evidence was that "maybe it could've had some effect, I didn't know, but I may have had some effect, but I've actually got no idea." [Transcript p. 1-68]. [27] On his earning from 2010 the witness was taken to a tax return that showed a gross income of $80,610 and an amount of $78,306 as expenses for that financial year [Transcript p. 1-69]. Note: Counsel for Q-COMP was granted leave to cross-examine the Appellant on the tax return document [Exhibit 15] which confirmed that his net income from his self-employment in the 2010 tax year was $2,304. [28] In terms of the drink driving offences, he confirmed that the last offence was in 1994. Mrs Evans [29] Mrs Evans (Appellant's wife) gave evidence in the first instance about her marital and family status. Her evidence was that prior to the Appellant's accident on 31 May 2010, he was even tempered, never angry, never yelled at the kids much and was an outgoing person who got on with everybody. Since the accident he is unable to do a number of physical activities that he could previously undertook and that causes him upset. [30] There was evidence from Mrs Evans about her medical condition and the level of dependence she had on her husband prior to 31 May 2010. Since the workplace accident, she had observed changes in her husband's -- 4 of 17 -- 5 behaviour which had affected their relationship. He is now often "moody and down" with the communication between them being at a reduced level. He now sleeps on the lounge room floor, rarely shares the marital bed and she often hears him getting up during the night. [31] On her husband's consumption of alcohol prior to 31 May 2010 it was her evidence that on the odd occasion he would have a beer during the week and generally on a Sunday when he was working outside. Following the accident, the level of consumption increased but only on the weekends. [32] Other observations of Mrs Evans related to her husband's complaints about his ongoing pain (a couple of times a day) and that there is no improvement in his mood. [33] In the course of cross-examination, Mrs Evans' recollection of her husband's alcohol consumption prior to commencing employment with Swift was that he only drank at weekends and the only time she could remember him buying beer was when he was about to mow the lawn [Transcript p. 1-85]. On commencing the employment, the consumption remained the same. A couple of months after the accident she noticed that he started drinking scotch. [34] On the reason given by her husband in taking on the Night Cleaner position at Swift, it was Mrs Evans' evidence that moneywise it just worked out better for him. Phillipson [35] Dr Phillipson, a Consultant Psychiatrist, prepared four reports in relation to the Appellant. The reports were tendered in the proceedings as follows: • 8 April 2011 [Exhibit 4]; • 1 May 2012 [Exhibit 5]; • 13 June 2012 [Exhibit 6]; and • 18 December 2012 [Exhibit 7]. [36] In terms of Exhibit 4, Dr Phillipson confirmed that prior to the consultation with the Appellant, he had no dealings with him either professionally or socially. In the report he indicated that the Appellant's "pain resulting in a pain disorder, alcohol and codeine abuse and his depressive and demoralised reaction, I have formed the view that his current psychiatric symptoms are likely to be long term in nature". The report suggested that he is likely to be suffering a permanent psychiatric impairment. [37] In summarising, Dr Phillipson stated: "Orthopaedic opinion holds that the prognosis for this man's back injury is poor. As a result of his back injury Mr Evans in my opinion has developed a Pain Disorder, Mild Adjustment Disorder with Depressed Mood, Alcohol Abuse and Codeine Abuse". [38] In providing a second report [Exhibit 5], which followed a request to review psychiatric reports that had been prepared by Dr Gunn. Dr Phillipson indicated that he had had no contact with the Appellant since the previous consultation. The report addressed a multitude of issues considered by Dr Gunn, with Dr Phillipson concluding that: "I am of the opinion that Dr Gunn has taken into account the evidence that I relied upon to reach my conclusions. We both agree that there is a diagnosis of alcohol abuse and antisocial personality traits. I note that Dr Gunn has not shared my opinion that Mr Evans has probably developed codeine abuse. Dr Gunn disagrees with my diagnosis of Pain Disorder. Dr Gunn has also come to the view that the neurovegetative symptoms reported by Mr Evans, could be attributed to alcohol abuse. Whilst this is possible, I am of the opinion on balance, that the diagnosis of adjustment disorder with depressed mood is the more likely. We therefore disagree on this point.". [39] The third of Dr Phillipson's reports [Exhibit 6] related to an assessment of the Appellant conducted in June 2012. This was the first time that Dr Phillipson had seen him since the first consultation in April 2011. The report indicated that the Appellant's prognosis remained poor and that he had not availed himself of specific psychiatric or psychological therapy nor had he been doing any physiotherapy exercises that may have assisted him physically. There was no significant change in his symptoms when compared to the assessment of him in April 2011 apart from a comment from the Appellant that he can "put up with the pain". The Appellant repeated the K10 testing which showed minimal improvement over the 12 month period. -- 5 of 17 -- 6 [40] Dr Phillipson found that the Appellant had "developed a range of emotional symptoms which he had initially diagnosed as a pain disorder, together with depressed mood and co-morbid alcohol and codeine abuse. This had occurred on a background of antisocial personality traits". [41] The pain disorder was now in partial remission and there was no evidence to suggest an ongoing adjustment disorder. The Appellant's alcohol use was "reportedly significantly reduced". [42] The final report [Exhibit 7] was provided in December 2012 and again there had been no contact with the Appellant since the consultation in June 2012. On his use of alcohol, he had in the past month consumed six 1.25 litre bottles of whiskey distilled by a friend, said to have a 40% alcohol content. [43] The Appellant again completed the K10 test which indicated no significant change since April 2011. Note: Dr Phillipson stated "As previously cautioned, this [K10 test] is a self-report test and in medico-legal assessments is open to bias". [44] The report went on to state the following in terms of Dr Phillipson's diagnostic opinion: "In my opinion, Martin Evans fulfils the diagnostic criteria for the following expressed in DSM IV terms: Axis I Pain disorder associated with psychological factors and a general medical condition (in partial remission); probable alcohol abuse; possible codeine abuse. Axis II Antisocial personality traits. Axis III Chronic back pain Axis IV Financial stress; relationship stress. Axis V Global Assessment of Functioning (GAF) = 60 to 70 (mild to moderate symptoms).". [45] Dr Phillipson confirmed his previous opinion that the Appellant had ongoing symptoms of a pain disorder associated with psychological factors and a general medical condition with the impact of the pain disorder largely unchanged in the last six months. The Appellant's mental health condition had plateaued and was likely to remain unchanged until his medico-legal matters are finalised. [46] The psychiatric condition was said to be a direct result of the reported back injury which occurred on 31 May 2010 however as physical injury is outside his area of expertise he was not able to give an opinion as to whether the psychiatric diagnosis was a direct consequence of the aggravation rather than the underlying alleged pre-existing condition. [47] The report concluded with the following statement: "I am however prepared to state that it is my opinion that the back injury at work reportedly occurring on 31 May 2010, has triggered an adjustment disorder (now in remission), a pain disorder associated with psychological factors and a general medical condition (now in partial remission), codeine abuse (possibly ongoing) and alcohol abuse (although reportedly pre-existing the index event, almost certainly worsened by it and ongoing.". [48] In evidence-in-chief, Dr Phillipson explained that the relevance of Orthopaedic evidence, from his perspective, was to satisfy himself that there had been an injury that possibly explains the level of pain and the impairment that the Appellant was said to be suffering. [49] On matters relating to his reports (tendered in the proceedings), Dr Phillipson stated that there had been no suggestion of any malingering happening and as such there was no other adequate explanation for the Appellant's perception of pain of which he complained. The Appellant had satisfied him that the diagnostic criteria for pain disorder (DSM-IV) had been met and when taken to the opinion of Dr Gunn it was his evidence that the Appellant had been found to meet criterion A and B. Further on Dr Gunn's finding that in the case of the Appellant there was a minimal impairment of function according to the Global Assessment of Functioning (GAF) of between 80 and 90, the evidence of Dr Phillipson was that he had suggested a moderate impairment of 60. This finding had been based upon the impact of the injury and pain in addition to the Appellant's interaction with his family and general functioning. The level of impairment suffered by the Appellant was, in his opinion, not consistent with a GAF of 81 to 90. Dr Phillipson accepted that a decrease in the level of alcohol would lead to an improvement in function, but in the case of the Appellant he did not consider that alcohol abuse did not adequately explain his presentation when being examined, nor did it explain the level of pain and impairment. [50] In the course of cross-examination, Dr Phillipson accepted that "anxiety of itself" does not mean that there is a diagnosable disorder present but it was said that it becomes a disorder when the anxiety interferes with various -- 6 of 17 -- 7 areas of functioning [Transcript 2-9]. In relation to questions around the Appellant's posture and gait plus a suggestion of "play acting" the Doctor indicated that it was possible but in his opinion not probable [Transcript p. 2-11]. It was indicated that both Dr Gunn and himself agreed that there were some antisocial traits in the Appellant's personality structure [Transcript p. 2-12]. [51] On the Appellant's usage of codeine, the evidence from Dr Phillipson was that people usually do not abuse codeine in the absence of some trigger, such as chronic pain [Transcript p. 2-16]. With regards to the presentation of the Appellant at the two consultations, the Doctor formed the view that he was tired of the process and people with antisocial personality traits often become flippant and have some difficulty remaining on task [Transcript p. 2-18]. [52] In re-examination, Dr Phillipson offered an opinion that a person with antisocial personality traits would almost certainly have less tolerance of any kind of physical or emotional discomfort, making it possible to exacerbate some of the symptoms of a pain disorder [Transcript p. 2-20]. Report of Dr Gillett [53] As mentioned previously, this report [Exhibit 3] was tendered in the proceedings by the Appellant. Dr Gillett, an Orthopaedic Surgeon, at the request of the Appellant Solicitors, conducted an examination of him on 19 April 2011 and reviewed the accompanying documentation that was provided. [54] In response to specific questions posed Dr Gillett offered a number of opinions which included: • nature of Appellant's injuries suffered in the accident of 31 May 2010 - L5 S1 poster lateral disc protrusion (bilateral); • injury occurred in the presence of pre-existing degeneration; • treatment - non-operative; • ongoing management involves pain management strategies; and • would not be able to return to the type of work undertaken in the past. [55] In terms of impairment, it was measured at eight percent impairment of whole-person function (2 percent reflects pre-existing pathology and 6 percent the sequence of the event). Q-COMP Gunn [56] Dr Gunn, a Consultant Psychiatrist, prepared two reports relating to the Appellant. The reports were tendered in the proceedings as follows: • 15 November 2011 [Exhibit 17]; and • 15 March 2012 [Exhibit 18]. [57] The first report [Exhibit 17] was prepared at the request of JBS. At that time, the Appellant was interviewed in Brisbane for a period of two hours for the purposes of preparing an independent psychiatric medico-legal report. [58] The report contained information (provided by the Appellant) that related to a number of aspects of his personal life and matters associated with his employment history. Some of the areas covered included: • his early life; • marital status and current family life; • complaint history; • past psychiatric history (none); • past family psychiatric history; • past medical/surgical history; • medication; • drug and alcohol history; • forensic history; • bankruptcy history; • WorkCover history (none); • employment history; • relationship history; • personality factor; • mental state examination; • investigation (medical). -- 7 of 17 -- 8 [59] The assessment provided by Dr Gunn did not confirm a psychiatric injury related to the alleged event of 31 May 2010. The Appellant was found to be an "unreliable historian" and the history provided by him should be considered with extreme caution. In particular he had given an unreliable history regarding his intake of alcohol which conflicted with information given by him at the time of engagement by Swift. [60] Other significant inconsistencies said to have been evident went to matters of: • his family psychiatric history; • forensic history; and • past medical/surgical history. [61] Dr Gunn also noted that during the assessment the Appellant displayed inconsistencies in his physical capacity being able to move around the room with a normal gait having entered the assessment displaying an abnormal gait. Dr Gunn held the opinion that the Appellant did not suffer any emotional symptoms related to the alleged injury said to have occurred on 31 May 2013. [62] The Diagnosis of Dr Gunn in line with DMS IV was included in the report: "Axis I Alcohol Abuse (pre-existing); Axis II Antisocial trait; Axis III Bilateral disc protrusion on a background of pre-existing degeneration; Axis IV No new stressors; Axis V Minimal impairment of functioning - GAF 80-90 (relating to pre-existing Alcohol Abuse).". [63] In consideration of the issues JBS sought to have addressed the overall conclusions of Dr Gunn included: • that a work-related disorder was unable to be confirmed; • a psychiatric injury related to the event of 31 May 2010 was unable to be confirmed; • a work-related psychiatric disorder was unable to be confirmed; and • any treatment of the Appellant's disorder would be unrelated to the workplace and pre-existed any events in the workplace. [64] Dr Gunn's second report [Exhibit 18] was a consequence of a further request from JBS made on 15 March 2012. In the report Dr Gunn addressed previously raised matters that included: • Appellant being an unreliable historian; and • Appellant being grossly inconsistent about his alcohol intake. [65] The report noted the content of Dr Phillipson's first report [Exhibit 4] taking issue with his failure to "carry out objective testing of blood and urine to determine compliance or abuse of medications and substances". The report questioned the veracity of statements made by the Appellant that had been relied upon by Dr Phillipson. [66] Dr Gunn went on to reaffirm the opinions expressed by her in the report of 15 November 2011 [Exhibit 17]. [67] Dr Gunn, in giving evidence in the proceedings, indicated that in the past she had worked with Dr Phillipson on a number of Tribunals and whilst it was very rare for them to disagree, in this instance they had differing opinions. She explained in detail the methods she had utilised in the consultation process and of the interaction between herself and the Appellant giving her observations of him throughout the assessment. At times, the Appellant was said to have been sarcastic, interjecting for the entirety of the process, and complaining about being required to answer "a lot of questions" [Transcript p. 2-34]. Other observations went to the Appellant's physical presentation in the assessment where he had gone from walking with a limp to moving "very freely" [Transcript p. 2-37]. [68] Dr Gunn did not believe that there was great disagreement about the Appellant having pain but he had displayed no emotional symptoms that would cause him distress or the psychological factor that had played a role in him losing function occupationally, socially or personally. Dr Gunn ventured that the Appellant may have had an adjustment disorder. She reaffirmed the opinion contained within her reports that he did not have a pain disorder. [69] Under cross-examination, questions were put in relation to the Appellant's: • drink driving convictions in the early 1990s; • antisocial personality disorder; • having personality vulnerabilities; -- 8 of 17 -- 9 • presentation (physically) at the assessment; and • alcohol consumption. [70] Dr Gunn reaffirmed that the Appellant had proved to be a difficult historian. She accepted that he had a "fairly consistent work period" for at least ten years [Transcript 2-46], but overall her evidence was that she had not been able to obtain a reliable history [Transcript p. 1-48]. Significant questioning of Dr Gunn occurred in relation to the notes she had taken at the time of the assessment [Exhibit 20]. [71] Dr Gunn was requested to accept that in terms of a pain disorder, that whilst the symptoms may vary in terms of the sight of pain, would include a negative or distorted cognition, such as feeling helpless, inactivity and disability with the Doctor stating "Well, you can have that because of pain, but not a pain disorder" [Transcript p. 2-57]. [72] Dr Gunn accepted that the Appellant, as the family breadwinner, not being able to work could result in a loss of purpose and also accepted that it could also be the case following the loss of his business [Transcript p. 2-61]. Dr Gunn faced further questioning around the GAF score of 80-90 that she had apportioned to the Appellant. [73] In re-examination, Dr Gunn, when taken to the questions surrounding the Appellant's loss of purpose, conceded that her answer was "no more than speculative" [Transcript p. 2-73]. Dr Gunn confirmed again that it was difficult to extract history from the Appellant and it was her evidence that people who were truly focussed on their pain usually were forthcoming [Transcript p. 2-74]. Dr Wilson [74] Dr Wilson, an Orthopaedic Surgeon, first saw the Appellant on 29 June 2010 and on the same day furnished a report to JBS [Exhibit 19]. In the body of that report, he indicated that upon examination the Appellant had: "Normal gait, slight stoop, some straight flexion to the mid tibia extension reduced by 25%, straight leg raising 90 right and 80 left, negative hasseagues test, negative cross over test, reflexes satisfactory, weakness of EHL 4 over 5 and no sensory altercation.". [75] The radiology, through a CT scan, had shown degenerative disc disease with multiple level disc degeneration with disc protrusion L4/5, L5/S1, possible compression of S1 and maybe L5 nerve root. [76] The related condition to his work was said to be "a disc rupture at more likely L5/S1 and that the disc ruption would have been an aggravation of pre-existing likely minimally symptomatic disc pathology in his back". [77] The Appellant's prognosis was considered by Dr Wilson to be "less than excellent" because of the nature of the disease. It was Dr Wilson's opinion that "after such a work-related aggravation period in the situation with pre-existing pathology would be six to 12 weeks" and the Maximum Medical Improvement would not be relevant for six months although the work-related factors would likely cease in three months. [78] In terms of psychosocial factors, the report said "I am aware of nil". [79] In evidence, Dr Wilson confirmed the contents of his report and indicated that where he had given a recovery time for the injury to the Appellant at between six to 12 weeks, it was said to be on the "generous side" as six weeks "would be the usual turn of events". Any pain ongoing after the 12 weeks was "probably from the pre-existing degeneration in his spine because the singular work event would generally have settled". [80] Under cross-examination, questions were put to Dr Wilson about the medical nature of the Appellant's injury, with Dr Wilson's description of the injury being "these discs weren't actually ruptured, they were just bulging" [Transcript p. 2-77]. On the question that the dominant cause of the development of this disc protrusion produced the Appellant's leg symptomolgy was the work event, Dr Wilson did not accept that it could really be determined due to him not having leg pain with the original event. It was unlikely that the work-related event had caused the radiculopathy or the sciatica given the one month timeframe and it was more a feature of the degenerative process and the natural history of degeneration. He continued not to accept there was a strong association between the leg pain and the work-related event [Transcript p. 2-78]. [81] Dr Wilson, on the resolution of the aggravation being offered by him as six to 12 weeks in his report, conceded that it was a generalisation and does not apply to specific patients [Transcript p. 2-80]. [82] In response to a question from the Commission about comments Dr Wilson had made in respect to the condition of the Appellant's back, it was stated "What I'm saying is that his back is a lot more degenerative that it should be in a 42 year old" [Transcript p. 2-81]. -- 9 of 17 -- 10 [83] In re-examination, Dr Wilson confirmed his previous evidence that the Appellant's leg pain was not strongly related to the work event and that it was more of a degenerative process [Transcript p. 2-82]. Submissions Q-COMP [84] In written submissions, Q-COMP acknowledged that the Insurer and Q-COMP had rejected the Appellant's claim for secondary psychological injuries. It was Q-COMP's position that the Appellant did not develop either psychological injury and if the Commission was to determine that the injuries were suffered they did not arise out of his employment. The injuries had not developed during the period of the aggravation of a pre-existing back injury that had been accepted as a claim. The evidence before the proceedings from the orthopaedic surgeons confirmed that his work-related back injury had been an aggravation of pre-existing degeneration identified as "an aggravation of pre-existing lumbar spondylosis and disc protrusions". [85] The relevant history regarding the Appellant was that on 31 May 2010 whilst working as a Night Cleaner he slipped and hurt his lower back. Although in pain, he continued to work, finally seeing a Medical Practitioner about a week after the incident. He was initially certified as unfit for work for a two week period, however returned after one week to be employed on light duties. A few weeks after the work incident, he awoke one morning with severe leg pain and after again seeing a Medical Practitioner was referred to an Orthopaedic Surgeon (Dr Wilson). He saw Dr Wilson on two or three occasions following his initial consultation. According to the medical notes [Exhibit 8] of Dr Ng (who did not give evidence in the proceedings) the Appellant had visited her in July and August 2010 and whilst mention was made about his back injury, there was no mention made of any other matter. An entry for 5 August 2010 recorded the Appellant "was not coping - financial strife". Further on 23 August 2010, the notes recorded that "back pain much improved since stopping work". There was no mention in the notes of the Appellant "going off with the missus and kids" which is in direct conflict with the Appellant's evidence. [86] The absence of evidence from the General Practitioners who had treated the Appellant made it impossible to discern whether Dr Ng had reached a similar diagnosis from Dr Schinder about the Appellant suffering depression, however it should be noted that the Appellant visited the surgery on eight occasions between 28 September 2010 and 8 February 2011 with the medical notes containing no recorder of further mention by him of any psychological symptoms the medical notes confirmed from December 2010 that the Appellant's condition (pain symptoms) had improved and he was on a graduated return to work. [87] The practice records [Exhibit 9] from another medical centre which the Appellant started visiting on 11 February 2011 reflected a different picture despite his apparent improvement. He was indicating that his pain was getting worse with "back to back days at work" and the medical notes going forward reflected similar detail. [88] The psychiatric evidence before the proceedings saw some form of agreement in that both Dr Phillipson and Dr Gunn considered that the Appellant had: • traits of Anti-Social Personality Disorder; and • suffers from alcohol abuse. [89] The stark difference in their opinions were that Dr Phillipson is convinced the Appellant suffers from Pain Disorder and Adjustment Disorder whilst Dr Gunn is convinced he suffers from neither. The Commission, if it considers the evidence of Dr Gunn to be persuasive to the extent that the Appellant cannot meet the onus of proof that he suffers from one or both disorders then the Appeal must fail. [90] The submission in examining the evidence of each of the Psychiatrists said that it cannot be disputed that in reaching their conclusions, assessing psychiatrists are necessarily reliant on what the patient tells them, their demeanour and what can be obtained from the oral history provided by the patient as well as physical presentation. If the Commission was to find that the Appellant, who was aware he was undertaking a medico-legal consultation, lacked credibility then the views expressed by Dr Phillipson must be given less weight than would otherwise be the case. It was submitted that the Appellant was an unreliable witness with a "demonstrated history of vanishing the truth". [91] There were a number of instances raised in the submission that were said to affect the credibility of the Appellant. They included: • the manner in which he presented to Dr Phillipson on 8 April 2011; • the presentation when visiting Dr Gunn where he "entered the assessment with a limping gait although he moved around the room there was no apparent limp"; -- 10 of 17 -- 11 • his presentation during the trial which displayed periods of grimace and at other times suffering no difficulty. In the course of being cross-examined he stood for two-thirds of the time yet in re-examination did not stand or grimace; • the discrepancies in alcohol consumption prior to and after 31 May 2010, particularly as it related to the pre-employment form completed by him when he commenced work in March 2010; • the admission by the Appellant of three drink driving offences in the "nineties"; • the description of his pre-existing way of life stretches credibility. His claim was that whilst working two jobs he would perform 13.5 hours of physical work each day with two to four hours sleep in the 24 hour period. This schedule had continued for 11 months and there was no recorded history of any complaints or tiredness. It could be reasonably assumed that the Appellant "exaggerated his workload for purposes connected with his damages claim"; • the Appellant's claim to Dr Gillett that on 26 June 2010 the source of his "extra pain", yet there was no note of any cause previously being suggested by the Appellant nor did he give Dr Wilson (whom he saw a few days after 26 June 2010) any information about causation; • at his attendance with Dr Gillett on 1 April 2011 for the purposes of a medico-legal report, he informed the doctor that his injury on 27 June 2010 had occurred when he was lifting two legs of beef (30 to 40 kilograms each). This occurred whilst he was on a suitable duties plan which did not require him to undertake such work; • claims that his domestic life had been substantially adversely affected by his injury and that prior to the injury he had a life that could be described as "domestic bliss" getting on well with his children which can be contrasted to what he told Dr Gunn [in Exhibit 17]: "He reported he has been married for the previous 11 years 'unfortunately'. In explanation, Mr Evans stated 'She'll have the house when it is all said and done'. 'Mr Evans reported that they have 3 biological children to the relationship. It was noted that Mr Evans could not spell the name of the second child'. 'Mr Evans reported that his eldest child, a son, advised Mr Evans that he was thinking of leaving school and getting a job. Mr Evans reported his response was that his son could "piss off" if he wanted to. Mr Evans stated that the son had advised him if it did not worked (sic) out he would move back home. Mr Evans reported his response was that if he moves out - he stays out.". • the evidence was that the Appellant's attitude to his wife and family left a deal to be desired before his back injury, as well as afterwards and the claim of a previously everlasting happy home was most likely false. [92] Both Psychiatrists had (as previously mentioned) had agreed the Appellant had traits of Anti-Social Personality Disorder with Dr Phillipson's succinct evidence definition being: "Anti-social personality disorder is characterised by a persistent inability or unwillingness to conform to what society expects in terms of behaviour. Untruthfulness, deceitfulness, lying, that sort of thing is a characteristic. Typically of people with anti-social personality disorder have a criminal history. They're often combative in their directions with people, often with a long history of assaultiveness…". [Transcript p. 2-11, 12 and 13]. "Personality traits are developed in our formative years during childhood and adolescence and become manifest to a greater or lesser extent in adulthood.". [Transcript p. 2-12]. [93] The Appellant's evidence and demeanour were, according to the submission, well and truly in accord with the characteristics of Anti-Social Personality Disorder. By dent of personality he tells lies, is deceitful and it would be difficult for the Commission to accept any of his evidence to the required standard. [94] On the evidence of Dr Phillipson that there was no exclusion of a factitious disorder or malingering, although there was no evidence that he had investigated, considered and then disregarded both of those options. [95] In respect of the evidence given by Mrs Evans, it was submitted that the Commission might properly decide to place weight on her evidence having regard for: • her mental state; • her clear dependence on her husband; and • her willingness to "guild the lily" a little too much. [96] Her evidence-in-chief around the Appellant's alcohol intake conflicted with evidence given in cross-examination and whilst she was a person deserving of sympathy on account of her health situation it would be unsafe for the Commission to have confidence in her evidence. [97] The submission did not intend to harangue the Commission with reasons to pursue the evidence of one Psychiatrist over the other and whilst Dr Phillipson saw the Appellant three times as opposed to Dr Gunn who -- 11 of 17 -- 12 only saw him once, Dr Gunn in her evidence was able to indicate that she elicited rather more detail from the Appellant than Dr Phillipson. There was no apparent reason to discard the evidence or views of Dr Gunn and it was not inevitable that the Commission must decide between each of the psychiatrists when both can be legitimately accepted. However in that event the Appeal must fail. [98] On the issue of the secondary injury arising out of the compensatable injury, the evidence of Dr Gillett and Dr Wilson was that his back was a lot more degenerated than it should be for a 42 year old with Dr Wilson's opinion being that the aggravation would have resolved in four to twelve weeks, with the twelve being generous. Any ongoing pain would be attributable to the pre-existing problem. Dr Wilson, in cross-examination did not concede that the aggravation that occurred on 26 June 2010 would not have occurred without the earlier incident in May 2010 and was of a view that the 26 June 2010 aggravation was just part of the "natural history" because of the extent of the degeneration and could have been aggravated at any time in the ordinary course of the day. [99] The physical injury was compensatable as it arose out of, or in the course of, the Appellant's employment and for a secondary psychological injury to be compensatable injury it must have a causal connect with employment. For the psychological injury in this case to be compensatable it must have developed between 31 May and 31 August 2010. The first medical reference to any such symptom was the purported diagnosis of Reactive Depression made by a General Practitioner on 22 September 2010, however unfortunately there was no evidence in the proceedings from the diagnostician to test the diagnosis. [100] Dr Phillipson did not diagnose Depression and it was his evidence that the pain disorder must have come into existence at some time subsequent to August or September 2010 but it was not possible to say when either of them had come into existence. [101] The conclusion of the submission was that if the Commission was to accept that the Appellant suffered a Pain Disorder and Adjustment Disorder, the Appeal must nevertheless be unsuccessful because neither disorder appeared during the period of the aggravation injury. The disorders therefore must have arisen out of the ongoing pain caused by the natural history of pre-existing substantial degenerative problems. Appellant [102] The Appellant, in written submissions, provided background information relating to the issuing of a Notice of Claim on 28 September 2011 seeking damages for physical and psychological injuries which followed the acceptance of a claim for an aggravation of a pre-existing lumbar spondylosis and disc protrusions on 21 March 2011. [103] On 30 November 2011 there was a rejection of the psychological content of the claim on the basis that the Appellant had not sustained an injury in the nature of a "pain disorder, mild adjustment disorder with depressed mood". [104] It was submitted that the evidence before the Commission: • establishes on balance that the Appellant developed a psychological injury secondary to the physical injury sustained on 31 May 2010; and • does not support a finding that the Appellant's psychological injury arose or developed as a consequence of the Appellant's pre-existing largely asymptomatic degenerative back condition, but rather, as a consequence of the Appellant's accepted physical injury. [105] In terms of the development of a psychiatric injury, the submission placed reliance upon the four reports that had been prepared by Dr Phillipson which had consistently expressed the view that the Appellant "met the criteria for a diagnosis of pain disorder associated with psychological factors and a general medical condition; mild adjustment disorder with depressed mood; alcohol abuse; codeine abuse". [106] The factors considered by Dr Phillipson had regard for the DSM IV diagnostic criteria in relation to a pain disorder and adjustment disorder. A detailed explanation of both disorders was described diagnostically and as was the coding associated with the disorders. [107] Dr Phillipson had found that the Appellant's pain disorder was one that was associated with both psychological factors and a general medical condition. He had also expressed a view in relation to the notes and report of Dr Gunn that the reporting fulfilled criteria's A and B of the DSM IV diagnostic criteria for pain disorder. [108] A number of areas where the evidence of Dr Phillipson and Dr Gunn conflicted were identified in the submission as were areas where the evidence was not dissimilar in nature. There was an issue based around the presentation of the Appellant when examined by both Dr Phillipson and Dr Gunn with the submission suggesting that the Appellant's presentation satisfied the DSM IV diagnostic criteria for a pain disorder. -- 12 of 17 -- 13 [109] The evidence before the proceedings revealed that by the end of June 2010 the Appellant was fast forming the view that he was unlikely to recover from the physical injury sustained in the workplace incident and this was said to be of significance in terms of Q-COMP's suggestion that the psychiatric injury arose without any connection to the accepted injury. [110] The Appellant's evidence was that pain had impacted on almost every aspect of his life and he no longer enjoyed interests that he had previously undertaken such as working on cars and family outings. Additionally the relationship with his wife had become strained in the wake of his injury. The evidence from the Appellant's wife was in accord with the evidence given by him. [111] With regards to the pain, Dr Phillipson, in considering the opinion of Dr Gunn that the Appellant's presentation was due entirely to longstanding pre-existing alcohol abuse, believed that was too simplistic a diagnosis because it did not adequately explain his presentation. Dr Phillipson also did not accept that alcohol abuse was an explanation for the psychological factors referred to in terms of the criteria for pain disorder, although the intake of alcohol by the Appellant, on his own evidence, had increased post incident when compared to his intake prior to the injury. [112] On the assessment of Dr Gunn that a GAF of 81 to 90 (suggesting a minimal level of impairment) was considered by Dr Phillipson as questionable on the basis that the levels of impairment suffered by the Appellant were not consistent with a finding of that nature. [113] The Appellant submitted that the evidence of Dr Gunn was inconsistent at times and had demonstrated numerous flaws in her reasoning and consequently her expressed opinion. It was further argued that Dr Gunn's views appear to have bee expressed in circumstances which would indicate a lack of information due to the reluctance of the Appellant to provide that information or Dr Gunn's failure to ask the Appellant to explain a number of important factors. Dr Gunn had conceded on multiple occasions in cross-examination that she had not been able to obtain a complete history from the Appellant and that the reliability of any diagnosis necessarily depended on the completeness of the history obtained. It was said that Dr Gunn had conceded that having not obtained a reliable history from the Appellant she was not confident in making a diagnosis and further conceded that her assessment of limited impairment function was incorrect. [114] Dr Phillipson, on the other hand, did not experience similar difficulties in being able to establish a rapport with the Appellant and in all the circumstances it was submitted that the opinion of Dr Phillipson should be preferred to that of Dr Gunn and that a finding be made that the Appellant developed a psychological injury or injuries, secondary to the workplace incident of 31 May 2010 in the form of a pain disorder associated with both psychological factors and a general medical condition. [115] It was submitted that Q-COMP's position that the Appellant developed any psychological injury after the 31 May 2010 incident and that any such injury was due to his pre-existing degenerative back condition was not a position that could be maintained as there was no evidence before the Commission capable of supporting that view, nor any evidence upon which the Commission could reliably determine with any measure of precision the relevance, if any, of the asserted relationship between the onset, maintenance and severity of the Appellant's psychological injuries and pre-existing condition. [116] The matter of Purkess v Crittenden1 was cited where the High Court of Australia had referenced the matter of Watts v Rake2 submitting that the following extract contained considerations similar to this matter. The High Court noted: "…that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence … which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be.". [117] In this matter it was submitted that the evidence before the Commission had not established a necessary relationship between the Appellant's pre-existing degeneration and his psychological injuries, nor did the evidence establish "with any reasonable measure of precision" or at all the chronological factors which Q-COMP says signals the end of the Appellant's claim insofar as it arises out of the development of a psychological injury. At its highest, the evidence relied upon by Q-COMP suggests that the Appellant's pre-existing condition "might" be relevant in terms of his diagnosed psychiatric injuries, but fails to identify how or to what extent. 1 Purkess v Crittenden [1965] 114 CLR 164 2 Watts v Rake [1960] 108 CLR 158 -- 13 of 17 -- 14 [118] The difficulty for the proposition of Q-COMP was that secondary psychological injuries typically do not develop at the same time of the physical injury and they are, by their nature, secondary to and in response to the effects of a physical injury. The DSM IV explanation of an adjustment disorder is telling in this regard, that there is said to be a recognised three month period of development from the date of the stressor, which in this case was 31 May 2010. [119] The submission addressed the orthopaedic evidence before the Commission and in particular, the reliance by Q-COMP on that evidence in support of their position. Regarding the evidence of Dr Wilson, who last saw the Appellant on 3 August 2010, he did not at that stage, according to his reports, express the view that the symptoms observed by him and described by the Appellant were due entirely or even partially to his pre-existing degenerative condition. [120] Considered as a whole, it was submitted that the evidence before the proceedings demonstrates a clear causal link between the injury sustained by the Appellant on 31 May 2010 and the development of a pain disorder and adjustment disorder as diagnosed by Dr Phillipson. It was further submitted that the evidence does not suggest any link between the Appellant's pre-existing degenerative condition and his psychological injuries. [121] The submission identified matters that required some comment as a result of Q-COMP's reliance on issues that relate to the question of credit. Those issues included: • the Appellant "struggled terribly" with back pain from 31 May 2010; • the return to work (in the first instance) had periods where the Appellant was unfit for work; • the Appellant was unable to make an effective return to his carpet cleaning and pest control business after 31 May 2010, • the report of Dr Ng that noted some improvement in the Appellant's back pain (in significant terms) and the development of the psychological injury was not related causally to the injury sustained on 31 May 2010 when the notes suggested the contrary; • the Appellant's evidence regarding his intake of alcohol was subject of criticism as a result of the completion of a pre-employment form and the evidence describing his maximum intake; Note: There was no dispute that the Appellant had a longstanding history of alcohol abuse; • the question of the Appellant's work load prior to 31 May 2010; • suggestions that the Appellant may have exaggerated his work practices for the benefit of his claim for damages; • the reliance by Q-COMP on the Appellant's explanation on his reporting to Dr Gillett was "unmaintainable"; and • the Appellant's explanation of the change in his home life according to Q-COMP should not be accepted. [122] There was a concession that prior to the incident of 31 May 2010 the Appellant may have demonstrated some inconsiderate behaviour, was not surprising given that both Dr Gunn and Dr Phillipson in their assessments had found that he had "antisocial personality traits". The evidence of Dr Phillipson was there was a "marked" change in his behaviour after 31 May 2010 where he started to become irritable and angry towards his family. [123] The submission refuted the criticisms of both the Appellant and Mrs Evans regarding issues of credit surrounding their evidence before the proceedings where it was put that no weight should be afforded to the Appellant's evidence. The argument was that the Appellant had given his evidence and presented as a genuine witness both during evidence-in-chief and under cross-examination. [124] There was no impediment to the acceptance of the evidence of Dr Phillipson when his evidence was considered in its full context. [125] The submission indicated that the evidence demonstrates, on the balance, that the Appellant developed a pain disorder associated with psychological factors and general medical condition and an adjustment disorder secondary to the injury sustained by him on 31 May 2010. [126] Q-COMP had not discharged the reverse onus of proof in demonstrating that the Appellant's largely asymptomatic pre-existing degenerative condition caused or materially contributed to the onset of the Appellant's diagnosed psychiatric injuries. [127] There was no orthopaedic evidence capable of supporting Q-COMP's position that the Appellant's psychiatric injuries are not causally related to the injury sustained by the Appellant on 31 May 2010, nor evidence that supports the psychiatric injury taking its genesis from the pre-existing condition as opposed to the diagnosed disc-rupture and aggravation. -- 14 of 17 -- 15 [128] It was submitted that the Appeal should be allowed. Conclusion [129] The status of the Appellant as a "Worker" pursuant to s. 11 of the Act was not of question in the course of proceedings and therefore he is a person entitled to lodge an Application for Compensation in accordance with the Act and it follows also a person entitled to lodge a Notice of Claim for Damages in accordance with ss. 258 and 275 of the Act. [130] It was not of contest that the Appellant, whilst employed as a Night Cleaner with Swift, suffered a back injury on Monday 31 May 2010. [131] The evidence of the Appellant was that he continued working for the remainder of that week without availing himself of medical treatment, choosing to self-medicate using over the counter painkillers. He subsequently sought medical intervention followed by an Application for Compensation that was accepted for a physical injury being, an aggravation of pre-existing lumbar spondylosis and disc protrusions. At the time of the first treatment he was provided with a medical certificate allowing for an absence from work for two weeks but returned after one week at which time he was placed on light duties. The return to work was a "mixed bag" according to the Appellant's evidence, in that he alternated between light duties, normal duties, and having time off. [132] In terms of the chronology of events beyond 31 May 2010, the Appellant claims to have suffered extreme pain in his leg in late June 2010 and it is of evidence that on 26 June 2010 he consulted a General Practitioner at which time he did not identify any specific event or incident as a contributor to his pain. On 29 June 2010 the Appellant was examined by Dr Wilson (Orthopaedic Surgeon) who formed the opinion that it was unlikely that the work-related event had caused the radiculopathy or sciatica given the one month that had elapsed since that injury was sustained on 31 May 2010. In evidence, Dr Wilson did not accept there was a strong association between the Appellant's leg pain and the work-related event. [133] On 19 April 2011 the Appellant was examined by Dr Gillett (Orthopaedic Surgeon) who in his report under "History" recorded the following information: "He [the Appellant] saw the General Practitioner and he was off work and then he had no particular treatment. He then returned to work on or around 15/6/2010. He states his back remained painful. His duties got worse and then on the information provided around 27/6/2010 he woke with severe left leg pain and was unable to stand. He recalls this relates to working where he was lifting two legs of beef up on to the table. They were 30 to 40 kilograms. He cannot remember if it was the first or second and he lifted it up on the table and he had pain. This was severe into the leg and back.". [134] Dr Gillett in his report further stated "The dominant impairment reflects disc protrusion and although he has leg symptomatology he does not fit the radicular pattern of his disc protrusion.". [135] The information from the Appellant to Dr Gillett that he had suffered the leg pain from lifting two legs of beef weighing between 30 and 40 kilograms each was the subject of cross-examination with the Appellant conceding that the "lifting the beef incident" had never happened, after having earlier given evidence that the incident did occur. This aspect of the Appellant's evidence was telling in respect of establishing some level of credibility about the causative nature of the leg pain having arisen from a work-related incident. [136] The evidence before the proceedings from both Orthopaedic Surgeons did not support to any great extent that the incident of 31 May 2010 when the Appellant had suffered a back injury had any causal or temporal relationship with the leg pain experienced by the Appellant on or around 27 June 2010. [137] Dr Wilson had opined that the work-related aspect of the injury would have ceased at a point no longer than three months from the time of injury. In the case of Dr Gillett, there seems little doubt that he was not provided with an accurate or honest history regarding the causative nature of the pain to the Appellant's leg and this must be seen to colour in a negative way the opinions offered in his report [Exhibit 5]. [138] There was uncontested medical evidence that the Appellant had a degenerative back condition at a level beyond that of a 42 year old man and any pain attributed to the period beyond 12 weeks after 31 May 2010 would be due to the pre-existing condition is accepted by the Commission as a likely outcome based upon the standard of proof relied upon for Appeals of this nature. [139] The Commission would conclude the claim of the Appellant relating to the leg pain occurring on 27 June 2010 was as a consequence of the work-related incident of 31 May 2010 had little foundation from a medical or factual perspective. -- 15 of 17 -- 16 [140] The Notice of Claim completed by the Appellant at the section "Details of the event resulting in injury" identified the injury subject to the claim as occurring at 10.30 p.m. on 31 May 2010 when he slipped while attempting to get out from underneath a table therefore the claim for damages for a psychiatric injury was made on the basis that the Appellant had developed a secondary psychiatric/psychological injury arising from the physical (compensatable) injury of 31 May 2010. [141] The evidence of the two Psychiatrists in the proceedings gave to the Commission differing diagnostic opinions although there was some common ground in that the Appellant was a person with anti-social personality traits and had a long history of alcohol abuse. [142] Dr Phillipson, at the time of his first consultation (April 2011) with the Appellant, opined that he had developed a Pain Disorder, Mild Adjustment Disorder with Depressed Mood, Alcohol and Codeine Abuse as a result of his back injury. He provided a second report for the purposes of reviewing a report from Dr Gunn and indicated that there was disagreement in the areas of: • Codeine abuse; • diagnosis of pain disorder; and • alcohol abuse. [143] Dr Phillipson conducted a further assessment of the Appellant in June 2012 noting that whilst there were no significant changes in his symptoms from the April 2011 assessment he had "developed a range of emotional symptoms" that had initially been diagnosed as a pain disorder, depressed mood and co-morbid alcohol and Codeine abuse. [144] Dr Phillipson provided a final report in December 2012 where he recorded that the Appellant had advised of consuming six 1.25 litre bottles of whisky distilled by a friend with forty percent alcohol content in the past month. Additionally the report confirmed his opinion that the back injury at work that occurred on 31 May 2010 was the trigger for the psychological factors subject of the Appellant's claim. [145] The evidence of Dr Gunn who saw the Appellant on 15 November 2011 was that in her assessment he did not have a psychiatric injury related to the 31 May 2010 event and found he was an "unreliable historian" whose history should be considered with "extreme caution". Those inconsistencies were said to include: • his intake of alcohol; • his family psychiatric history; • forensic history; and • past medical and surgical history. [146] In the course of the assessment, he had displayed inconsistencies in his physical capacity with changes to his gait, going from normal to abnormal. [147] Under the DMS IV - Axis V - Minimum impairment of functioning, Dr Gunn had diagnosed a lesser GAF than Dr Phillipson and attributed the finding to the Appellant's alcohol abuse. [148] Dr Gunn, in her reports, had taken issue with the failure of Dr Phillipson to carry out objective testing of blood and urine in respect of abuse of medications and substances. Whilst there was no great disagreement about the Appellant having pain, she was of the opinion that in having failed to display emotional symptoms that would cause him stress, he did not have a pain disorder although it was conceded he may have had an adjustment disorder. [149] When giving consideration to the medical evidence of the two Psychiatrists, the Commission was conscious of the submission of Q-COMP that they did not intend to harangue the Commission to pursue the evidence of one Psychiatrist over the other and to some extent it was possible to accept evidence from each of the practitioners having relevance to the proceedings. [150] In the case of Dr Phillipson, he had seen the Appellant on more occasions than Dr Gunn and it would be safe to conclude that his exchanges with the Appellant were less confrontational than that experienced by Dr Gunn and he seemed to have no concerns about the history provided by the Appellant whereas Dr Gunn had based her assessments on what was described as "unreliable" history. As mentioned earlier, it was evidenced that the Appellant had not provided Dr Gillett with an accurate or honest history that, on the face, would seem to be for the purposes of benefiting his circumstances. The acceptance of Dr Gunn's evidence by the Commission that the Appellant was an "unreliable historian" is based on the plausibility the Appellant's actions in this respect were designed to make her task more arduous than necessary and as a consequence impact on the assessment in a manner that would benefit him. -- 16 of 17 -- 17 [151] On the full consideration of the psychiatric evidence before the proceedings, I am unable to conclude that the Appellant suffered the range of psychological injuries diagnosed by Dr Phillipson, preferring to accept the evidence of Dr Gunn that whilst the Appellant had at some time suffered pain, without developing a pain disorder within the psychological meaning, as a result of the injury suffered by him on 31 May 2010. There is other evidence before the proceedings that indicated there had been no diagnosis or reporting of the alleged psychological injuries or symptoms in the immediate aftermath of 31 May 2010 and it was in fact well after that date when the Appellant first identified these issues. [152] On the question of the credibility of the Appellant's evidence, I find that in a number of crucial areas I am unable to accept that his evidence could be relied upon with any confidence. As previously mentioned, the false claim about the cause of his leg pain around 27 June 2010 being linked to a non-existent work-related event flags to the Commission that it was clearly not the case at the time. The Appellant's claim that the pain could be attributed to the 31 May 2010 incident would, on the balance of probabilities, seem fictitious. [153] The evidence from the Appellant around his alcohol intake was not consistent, with the importance of that being Dr Gunn considered it was his abuse of alcohol that contributed to her GAF finding. Other areas of the Appellant's evidence that appeared questionable related to: • the total hours of work being undertaken at 31 May 2010 that included his other business activities; • a motor vehicle accident that occurred after 31 May 2010; and • his family circumstances. [154] In response to the authority of Purkess and Crittenden3 relied upon by the Appellant regarding a pre-existing condition, in this case the Commission found that it had not been established that the Appellant suffered a secondary psychiatric/psychological injury (per see) arising from the 31 May 2010 incident therefore the authority in the circumstances was of minimal assistance. Finding [155] The Commission, having considered the evidence, material and submissions before the proceedings, finds that the Appellant has failed to establish, on the balance of probabilities, that in accordance with s. 32 of the Act he suffered a psychiatric/psychological injury arising from the incident on 31 May 2010 which resulted in an injury described as an "aggravation of pre-existing lumbar spondylosis and disc protrusions". [156] The Orthopaedic evidence, in particular that of Dr Wilson, does not support the case prosecuted by the Appellant and similarly there is not a sufficient level of psychiatric evidence that assists favourably his Appeal. [157] Therefore the Appeal is dismissed and the decision of the Q-COMP Review Unit dated 5 April 2012, to confirm the decision of JBS to reject the Appellant's Notice of Claim, stands. [158] The matter of costs is reserved. [159] I order accordingly. J.M. Thompson, Commissioner. Hearing Details: 2013 22 and 23 January 11 March (Respondent's submissions) 18 April (Appellant's submissions) 30 April Released: 30 April 2013 Appearances: Ms A. Marks of Counsel, instructed by Mr C. Meibusch of South Queensland Law for the Appellant. Mr F. Lippett of Counsel, instructed by Q-COMP. 3 Purkess v Crittenden [1965] 114 CLR 164 -- 17 of 17 --