Booth v Q-COMP [2010] ICQ 53

CITATION: Juell Elizabeth Booth v Q-COMP (C/2010/39) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial magistrate Juell Elizabeth Booth AND Q-COMP (C/2010/39) PRESIDENT HALL 22 December 2010 DECISION [1] By an Application for Workers' Compensation dated 23 December 1996 and received by the then Workers' Compensation Board on 24 January 1997, Mrs Juell Elizabeth Booth sought benefits under the Workers' Compensation Act 1990, in respect of an injury sustained on 2 December 1996. The injury was described as "nerve injury back of right eye" and "strain possible disc injury". The Application asserted that the injury happened when Mrs Booth, who had been employed as a Customer Services Officer at the Nambour office of Queensland Transport since 18 November 1996, slipped off the wheel of a four-wheel drive vehicle whilst attempting to obtain an engine number in the course of her duties. [2] Mrs Booth's claim was accepted. She was paid benefits for the periods 14 December 1996 to 14 January 1997 and 3 June 1997 to 30 September 1997. However, by a letter dated 7 October 1997, WorkCover Queensland advised Mrs Booth that WorkCover had concluded that her continued absence from work was no longer considered to be the result of an "injury" for the purposes of Part 6 of the Workers' Compensation Act 1990. The same letter advised Mrs Booth that payments would not be made to her beyond 30 September 1997 (to which date, Mrs Booth had already been paid). [3] To assist understanding, I interpolate that on 12 December 1996, assent was given to the WorkCover Queensland Act 1996 to commence on 1 February 1997. The Act repealed the earlier Workers' Compensation Act 1990. Chapter 9 (Reviews and Appeals) of the WorkCover Queensland Act 1996, commenced on 1 July 1997. [4] WorkCover Queensland's letter of 7 October 1997 to Mrs Booth enclosed a brochure advising her of the new system of Reviews and Appeals. By a letter dated 18 October 1997, Mrs Booth sought a Review of the decision communicated to her by the letter of 7 October 1997. What happened thereafter, the Industrial Magistrate who dealt with this matter at first instance was unable to determine with any measure of precision. I have fared no better. The only response by Q-COMP is a letter dated 23 September 2009, referring to an Application for Review lodged on 14 October 2008. Q-COMP, I should interpose, had been brought into existence with the enactment of the Workers' Compensation and Rehabilitation Act 2003 which repealed and replaced the WorkCover Queensland Act 1996. Under the WorkCover Queensland Act 1996, Reviews were conducted by a group of WorkCover officers who operated independently of officers making original decisions. [5] Q-COMP's letter of 23 September 2009, rehearsed the history of the Application for Review lodged 14 October 2008: "The Applicant lodged an application for review on 14 October 2008 and by letter dated 26 November 2008, Q-COMP determined that the application for review was lodged outside the statutory time limits. The Applicant lodged an appeal on 29 November 2008 in the Queensland Industrial Relations Commission. By decision handed down on 27 May 2009, the Commission set aside the decision of Q-COMP dated 26 November 2008 and ordered that the application for review of the decision of WorkCover on 8 October 1997 to cease her claim be dealt with according to law.". The letter went on to advise Mrs Booth that Q-COMP considered the critical issues to be whether as at 30 September 1997, Mrs Booth continued to be incapacitated for work as a result of a work-related injury and if she was, whether Mrs Booth required medical treatment for the work-related injury. Q-COMP advised Mrs Booth that Q-COMP had been unable to conclude that she continued to suffer a work-related injury beyond 30 September 1997 and that the decision of WorkCover to terminate her entitlement to benefits was confirmed. Reasons were supplied to Mrs Booth. [6] Mrs Booth appealed to the Industrial Magistrate at Hervey Bay. By a decision delivered on 27 April 2010, the Industrial Magistrate dismissed the Appeal. Mrs Booth now Appeals to this Court. [7] The Industrial Magistrate proceeded on the view that Mrs Booth's appeal was governed by sections 88 and 6(1) of the Workers' Compensation Act 1990. At paragraphs [7] to [10] of the decision of 27 April 2010, the Industrial Magistrate observed [footnotes omitted]: -- 1 of 5 -- 2 "[7] The injury in this case occurred on 2 December 1996 when the Workers' Compensation Act 1990 ('the 1990 Act') was still in force. The relevant provisions of the WorkCover Queensland Act 1996 (No 75 of 1996) repealing the 1990 Act did not come into force until after that date. [8] Section 88 of the 1990 Act is contained in Part 6 (Entitlement to Compensation) which provides: Compensation to injured worker 88. A worker who suffers an injury arising out of or in the course of the worker's employment is entitled (and, in the case of the worker's death being or resulting from the injury, the worker's dependants are entitled), subject to this Act, to be paid from the fund, compensation in accordance with this Act. [9] Relevantly 'worker' is defined section 5 of the 1990 Act to include an individual who works under a contract of service with an employer in work of any description. It is not disputed that Ms Booth was at all material times a worker. [10] The relevant definition of 'injury' in subsection 6(1) (Part 2 of the 1990 Act) provides: 'injury' means personal injury arising out of, or in the course of, employment if the employment was a significant contributing factor to the injury.". With respect, that issue appears to me to be entirely correct. Further, as His Honour pointed out, on the facts of this matter, textual differences amongst the Workers' Compensation Act 1990, the WorkCover Queensland Act 1996 in its various manifestations) and the Workers' Compensation and Rehabilitation Act 2003 are not material. However, whilst I agree with the conclusion that "any physical personal injury Mrs Booth was suffering from after 30 September 1997 did not arise out of or in the course of her employment", I consider that on the evidence Mrs Booth failed to establish on the balance of probabilities that she was suffering any physical personal injury at all. [8] It cannot be disputed that Mrs Booth went to trial knowing that WorkCover held reports from each of Dr Landy (a neurologist) and Dr Blue (an orthopaedic surgeon). The Industrial Magistrate (accurately) summarised the reports of each of Dr Landy and Dr Blue as follows: "[40] On 11 June 1997 Dr Watson referred Ms Booth to neurologist Dr Landy who provided a report to WorkCover dated 7 July 1997 at WorkCover's request. It is not disputed that Dr Landy is deceased and the report was tendered as exhibit 8. After reciting her history, Dr Landy among other things said: Neurological examination revealed no abnormaility other than the fact that she held her head stiffly and to the left side. There was no spasm that I could detect to palpation of the sternomastoids or of the splenius capitus muscle. I can find no neurological basis for her problems. I reviewed her MRI which showed no evidence of a disc or cord lesion. … [41] At WorkCover's request, Ms Booth saw orthopaedic surgeon Dr Blue who provided a report dated 22 September 1997 (exhibit 10). Dr Blue also gave evidence for the respondent. After reciting a history etc. he concluded: She certainly suffers no organic disability whatsoever in her neck despite her quite bizarre presentation and claims. She is either a hysteric or suffers from some form of bizarre psychiatric abnormality. The only other possibility is that she is simply malingering. From her past history I would be concerned that this claim also may become the subject of some form of litigation, however, it has no true medical basis whatsoever and I would recommend immediate cessation of same and review by a psychiatrist. Further active medical treatment of a orthopaedic or pain relief nature will only serve to re- enforce her belief that she suffers from some form of true organic disease which is simply not true.". The Industrial Magistrate who had the advantage of seeing and hearing the witnesses and of observing the trial develop, expressly found that Mrs Booth's cross-examination of "… just about every comment that Dr Blue had made in his report" had "not in any way undermined Dr Blue's evidence". (By the time of the hearing, Dr Landy had passed away.) -- 2 of 5 -- 3 [9] An appeal to an Industrial Magistrate against a Review Decision by Q-COMP is by way of a hearing de novo. It is not a trial by medical champions. However, clearly articulated opinions by practitioners with impeccable specialist qualifications require an answer. Here, no answer was forthcoming. [10] Mrs Booth called four medical witnesses, viz., Dr Tan (general practitioner), Dr Watson (general practitioner), Dr Winstanley (orthopaedic surgeon) and Dr Markou (psychiatrist). Each of the medical witnesses gave evidence by phone. [11] Mrs Booth attended on Dr Tan on 3 December 1996. There were subsequent attendances. Medical certificates were in evidence. It is plain that Dr Tan considered that injuries to Mrs Booth's eye and/or neck (totally) incapacitated her for work over the period 3 December 1996 to 14 January 1997. Mrs Booth's claim for that period (it should be remembered) was accepted. As to Mrs Booth's condition in September/October 1997, Dr Tan gave no evidence. Dr Tan did not assist Mrs Booth's case. [12] Mrs Booth first attended on Dr Watson on 11 December 1996. There were subsequent attendances. In late March 1997, Dr Watson issued a report to WorkCover which, amongst others things, recorded: "At the last appointment, a C2-3 facet block under image intensifier, was performed at Queensland X-ray. Immediately following that, she had a full range of movements, active and passive, and was virtually symptom free.". The consequences of that report were dealt with by the Industrial Magistrate as follows [digression included, footnotes omitted]: "[34] In June 2000, Ms Booth requested Dr Watson change his report to the effect that these observations applied when she was lying on the couch but when she sat up her symptoms of stiffness and inability to rotate normally resumed. He issued a letter to that effect at Ms Booth's request. I note in Ms Booth's carefully prepared bundle which constitutes exhibit 6, she did not include Dr Watson's first letter of 26 March 1997. Dr Watson conceded in cross examination that he was simply relying on what Ms Booth had told him in June 2000 and that his record of events in his letter of 26 March 1997 would represent a more accurate record of his findings. I accept the contents of the 26 March 1997 letter as being accurate and that reference to both active and passive full range of movement as well as 'virtually symptom free' are not limited or confined as Ms Booth now suggests. A clear pattern emerges in Ms Booth challenging various doctors about their history taking and opinions before me at trial. She not only requested Dr Watson amend his report above, but by letter dated 9 December 2007 she also requested psychiatrist Dr David Alcorn to retract his diagnosis and sought an apology. By letter dated 27 February 2008 Dr Alcorn declined. Ms Booth had consulted him in 1997. [35] I diverge for a moment to observe that Ms Booth disagreed with most, if not all, of the medical practitioners' descriptions of the incident recorded in their contemporaneous notes. All of those versions recorded by the doctors were strikingly similar even though they were made quite independently of each other. On balance I accept the recorded versions in the contemporaneous notes made by the medical practitioners.". Dr Watson's evidence does not support a finding that Mrs Booth was suffering a work-related eye/neck injury in September/October 1997. [13] Dr Winstanley, whose evidence was brief, prepared a report (not being a medicolegal report) for Dr Tan in December 1996. At that time, Dr Winstanley was of the view that: "This patient would seemed [sic] to have sustained a sprain type injury to her cervical spine area. There is no indication that there is any significant underlying major pathology. In this situation she would benefit from further conservative treatment of heat, massage and physiotherapy. I feel this should resolve her problems over a period of time. There is no indication that she requires further investigation. Long term prognosis I feel, is satisfactory.". To the extent that Dr Winstanley observed that Mrs Booth's injury was not serious, it weighs against the conclusion that the injury persisted in September/October 1997. Certainly Dr Winstanley did not give evidence that any symptoms from which Mrs Booth was suffering in September/October 1997 were causally linked to her former employment. [14] Dr Markou gave evidence about psychiatric issues which are not the subject of these proceedings. Dr Markou first saw Mrs Booth in September 2005 and later in 2008. His evidence throws no light on Mrs Booth's physical state in September/October 1997. -- 3 of 5 -- 4 [15] By consent, Mrs Booth tendered an 84 page statement (with annexures). In my view, s. 320(2) of the Industrial Relations Act 1999 authorised the Industrial Magistrate to receive the document by consent. The statement includes a report by Dr Boyle (a neurologist) dated 3 July 1997. Accepting that Dr Boyle was not called (but noting that evidence is evidence for all legitimate purposes), Dr Boyle's report comments: "When I saw her, she walked and sat with her neck quite rigid. However, on palpation, muscular contraction could only be felt in those muscles antagonising the attempted movements. Thus, the extensors contracted when I tried to flex her neck and vice versa and then the same with rotation and lateral flexion to either side. This is a very strange condition and I really doubt that it has any organic basis. I certainly would not consider it organic dystonia…". [16] In my view, the case developed by Mrs Booth at first instance quite failed to meet the evidence which fell from Dr Blue and to meet the report of Dr Landy. Indeed, in my view, it was not open to the Industrial Magistrate to conclude that on and from 30 September 1997, Mrs Booth was suffering from a physical injury which arose out of or in the course of her employment. [17] Mrs Booth takes a number of points. [18] Mrs Booth complains that the 84 page document (with annexures) should have been read into the transcript. There is nothing in s. 320(2) of the Industrial Relations Act 1999 to require that course of action. It should be noted that this Court is presently concerned with the rights of litigants inter se. Third-party rights of access to affidavits/statements formally read are matters for another day. Mrs Booth's further complaint that she was taken by surprise and denied the opportunity to elaborate upon her statement, is a complaint which contradicts the transcript. The Industrial Magistrate made every effort to ensure that Mrs Booth addressed on all of the issues concerning her. [19] Mrs Booth is correct to observe that the Industrial Magistrate had not considered whether WorkCover Queensland had shown Mrs Booth procedural fairness. The scheme of the legislation is to resolve issues by trial of the merits. Here, the merit issue was whether in September/October 1997, Mrs Booth suffered a work-related eye/neck injury. [20] Contrary to Mrs Booth's submission, the Industrial Magistrate expressly dealt with Mrs Booth's submission that WorkCover Queensland staff without medical qualifications might not lawfully terminate her entitlement to payment. At paragraphs [15] to [19] of the Industrial Magistrate's decision, His Honour said [footnotes omitted]: "[15] The Chief Executive Officer of WorkCover was appointed under section 399 of the 1996 Act and, anything done by that person for WorkCover was taken to be done by WorkCover: section 401. The Chief Executive Officer could delegate powers to an appropriately qualified employee in WorkCover to exercise a power under the 1996 Act including the power to review entitlements under section 186: section 402. There is no statutory requirement that such employee be a medical practitioner in order to exercise a power under section 186. If that were the case, then the 1996 Act would have specifically said so as it did, for example, for assessment of the degree of permanent impairment in section 197. A similar scheme applied in the 1990 Act and currently applies in the 2003 Act. Then, one purpose for exercising the power under section 186 of the 1996 Act is that the delegate of the Chief Executive Officer may 'at any time' require a worker to submit to a personal examination by a suitably registered person including doctors pursuant to section 162 of the 1996 Act. Similar schemes were provided for in former sections 103 & 109 of the 1990 Act and in current sections 135 & 168 of the 2003 Act. That is what occurred in this case. Ms Booth saw Dr Blue who provided a report which, along with other material including an opinion from neurologist Dr Landy, the authorised delegate took into account in making the decision communicated by letters of 7 & 8 October 1997 to terminate payments after 30 September 1997. [16] Ms Booth has referred to section 96(3) of the 1990 Act to the effect that entitlement to compensation does not arise until the worker is assessed by a medical practitioner as incapacitated for work. She said that a WorkCover officer, who is not medically qualified, cannot terminate payments when she had a medical certificate from a doctor, namely general practitioner Dr Watson, assessing her unfit for work until 30 October 1997. Section 96(3) is similar to former section 168 of the 1996 Act and current section 141 of the 2003 Act. These provisions are concerned with the day on which compensation starts. They are not concerned with termination of payments. They are not concerned with the process of determining whether or not to terminate after a review under former section 109 of the 1990 Act, former section 186 of the 1996 Act or current section 168 of the 2003 Act. In my view Ms Booth's submission in this respect has no substance. -- 4 of 5 -- 5 [17] Then section 195(1) of the 1996 Act, which is similar in effect to former section 126(1) of the 1990 Act and current sections 144A & 144B of the 2003 Act, relevantly provided: When weekly payments stop 195.(1) The entitlement of a worker to weekly payments under this part stops when the first of the following happens - (a) the incapacity because of the work related injury stops; (b) … (c) … [18] In this case WorkCover decided, which was confirmed by Q-COMP, to terminate compensation on the basis that it could not be concluded on the available evidence that any ongoing incapacity suffered by Ms Booth was the result of 'injury' as that term is defined i.e. a personal injury arising out of or in the course of employment if the employment was a significant contributing factor to the injury. Therefore, by force of section 195 of the 1996 Act, entitlement to compensation stopped. [19] The obligation on WorkCover to pay medical expenses under Chapter 4 (Injury Management) of the 1996 Act like section 143 of the 1990 Act is prefaced on the basis that the worker has sustained an injury for which compensation is payable: section 226. The effect of the legislative scheme, which is similar to the 1990 Act on this point, is that if it is determined under section 186 that payments are terminated, this means that the obligation to pay medical expenses also ceases because compensation is not payable. Section 144B of the 2003 Act relied on by Q-COMP expressly provides for that also.". [21] The appeal to the Industrial Magistrate is by way of hearing de novo - not by way of judicial review of WorkCover's procedures and/or decision. I doubt that the Industrial Magistrate needed to deal with the point. In any event, paragraphs [15] to [19] are prima facie correct and Mrs Booth advanced no rebuttal. [22] Mrs Booth's submission that the Industrial Magistrate wrongly revisited the issue whether Mrs Booth had a claim in early 1997 finds no support in the transcript. Had that matter been an issue Mrs Booth's medical witnesses might not lightly have been put aside. [23] Mrs Booth was disadvantaged. All self-represented litigants are disadvantaged. The transcript shows that the Industrial Magistrate endeavoured to assist her whilst refraining from stepping into the fray. [24] I agree with the Decision of the Industrial Magistrate. I dismiss the Appeal. I reserve all questions as to costs. Dated 22 December 2010. D.R. HALL, President. Released: 22 December 2010 Appearances: The Appellant in person. Mr C. Clark instructed by HBM Lawyers for the Respondent. -- 5 of 5 --