Clark v Q-COMP [2010] ICQ 7

CITATION: Allan Raymond Clark AND Q-COMP (C/2009/38) - 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 Allan Raymond Clark AND Q-COMP (C/2009/38) PRESIDENT HALL 19 February 2010 DECISION [1] By an application for compensation dated 12 November 2008, Mr Allan Raymond Clark claimed benefits under the Workers' Compensation and Rehabilitation Act 2003 (the Act). WorkCover Queensland rejected the application. Mr Clark sought a Statutory Review. By a decision of 18 March 2009, Q-COMP confirmed WorkCover's decision. Mr Clark appealed to an Industrial Magistrate at Brisbane. By a decision delivered on 28 July 2009, the Industrial Magistrate dismissed Mr Clark's appeal. Mr Clark now appeals to this Court. [2] Neither at first instance nor on the Appeal, has it been disputed that at all material times Mr Clark was a "worker" for the purposes of s. 32 of the Act. Neither has it been disputed that at the time of his consultation with Dr Langley (on 20 February 2009), Mr Clark had a personal injury by way of an L3-4 stenosis of his lower back. [Evidence supporting the existence of the injury appeared in a MRI scan performed earlier on 23 September 2008]. At all times, both at first instance and on the Appeal, the issue has been whether the personal injury arose out of or in the course of Mr Clark's employment, and whether the employment was a significant contributing factor to the injury. On those issues Mr Clark bore the onus of proof on the balance of probabilities. He was required to discharge that onus against a background of earlier back pain resulting in two laminectomies in 1979 and 1980, and in circumstances in which the orthopaedic surgeon called by Mr Clark (Dr Langley) gave evidence in cross-examination that Mr Clark's back was "at risk" because laminectomies weaken the back and make it more susceptible to injury. [3] It is convenient to adopt the Industrial Magistrate's summary of Mr Clark's evidence about how and when the injury occurred in the course of his employment as a technical teacher at an institution previously know as the Brisbane North Institute of TAFE and now known as "Skills Tech Australia", situated at Eagle Farm in Brisbane. The summary is: "Mr Clark gave evidence that on 8 August 2008* he was in his office. He said he reached under his desk to retrieve a box of teaching materials which was on top of another box under his desk. He said it weighed 32 kilograms. He pulled it out from under the desk and in the one motion stood up, turned and twisted his body around to place the box on his chair. At first he said he felt a click or strain in his back but later in his evidence he said he felt a sharp pain and again later he described this sensation as an 'electric shock'. He then carried his box of materials to his class room.". [*The correct date was 8 August 2007.] [4] It is apparent from the Industrial Magistrate's reasons for decision that His Honour was troubled by discrepancies between the evidence of Mr Clark and the evidence of a Dr Ha (a general practitioner called by Mr Clark). It was the evidence of Mr Clark that on the evening of 8 August 2007, he spoke to his wife about pins and needles in his left foot. His evidence was that his wife told him to see a doctor and that he took that advice. He asserted that on the following day (9 August 2007) he saw Dr Ha who had been fulfilling the role of his general practitioner since on or about 13 June 2007. As I have noted, Dr Ha gave evidence. I should also note that his clinical notes were tendered. It was Dr Ha's evidence that the prime reasons for Mr Clark's consultation with him on 9 August 2007, was to review results for tests performed at a heart clinic regarding a condition known as "Supra Ventricular Tachycardia". (The tests had been undertaken by Mr Clark of his own volition. The appointment was not pre-booked.) After the discussion of the test results, Mr Clark raised the matter of "pins and needles in his feet" and Dr Ha arranged blood tests. The blood tests, I should add, were found to be normal. The clinical notes do not record any concerns or issues about Mr Clark's back. Mr Clark admitted that he made no mention of his back on this occasion. Neither did he make any mention of his back at a further meeting with Dr Ha on 14 September 2007. He did not inform Dr Ha of any problem with his back until 8 January 2008 when he complained of back pain as well as "pins and needles in his feet" which, at that time, Mr Clark attributed to taking a medication know as "Prexige". [5] On 20 February 2008, Mr Clark attended upon Dr Langley with a view to the preparation of a medico/legal report for use in the prosecution of his claim for workers' compensation. Some of the information which Mr Clark gave to Dr Langely was incorrect. Initially he told Dr Langley that the incident at work had occurred on 14 September 2007 and that he consulted a doctor within a month of the injury. By an amended medico/legal report, Dr Langley varied the date of the incident to 8 August 2007 and noted that he had attended upon a general practitioner the next day. Mr Clark also informed Dr Langely that that practitioner placed him upon -- 1 of 2 -- 2 medication, viz., Panadeine Forte and Panadol and that he attended the Wesley Pain Clinic for two weeks. There was nothing in the clinical notes of Dr Ha to support the claim about the prescription of that medication. Indeed, no prescriptions at all were printed on 9 August 2007. Certainly five prescriptions were printed on 14 September 2007 but the main reason for that visit was "gastritis". [6] In my view, this Appeal is very similar to the appeal in Winter v Q-COMP1. The Industrial Magistrate was not satisfied on the balance of probabilities because His Honour had no confidence in the evidence which fell from Mr Clark. The basis for the Industrial Magistrate's lack of confidence in the evidence of Mr Clark is plain from His Honour's reasons. The basis for the lack of confidence lay in the discrepancies. I cannot assert that His Honour was in error. [7] I note that both at first instance and on the Appeal, Counsel for the Appellant places great emphasis on the circumstance that an MRI scan from 2001 showed no L3-4 stenosis, whereas the September 2008 study does show such a stenosis. As Counsel for the Respondent put the matter below, a lot can happen in seven years. The comparison of the two scans throws no light upon when and how the injury occurred. I reject Counsel for the Appellant's submission that it was the evidence of Dr Langley that the injury to the Appellant's back would have first manifested itself as pins and needles in his feet and then pain in his back. Once again, that evidence sheds no light upon when and how the injury occurred. In any event, I reject the submission and the written submission: "Dr Langley's evidence was to the effect that the symptoms described by Mr Clark (ie: initially pins and needles in the feet with lower back pain manifesting over a period of time) was quite consistent with the injury described by Mr Clark.". In examination-in-chief, Dr Langley asserted that "pins and needles" and "numbness" in the feet "could be consistent" with Mr Clark's back condition. Later, Dr Langley adopted the language "not inconsistent". Such evidence is not probative of a link between the back condition and the symptoms identified by Mr Clark from the witness box but not drawn to the attention of Dr Ha. [8] I dismiss the Appeal. I reserve all questions as to costs. Dated 19 February 2010. D.R. HALL, President. Released: 19 February 2010 Appearances: Mr A. Fitzsimons, instructed by ALC Lawyers for the Appellant. Mr S. Sapsford, directly instructed for the Respondent. 1 Tammy Lee Winter AND Q-COMP (C/2009/35) - Decision <http://www.qirc.qld.gov.au> -- 2 of 2 --