Bradford v Q-COMP [2008] ICQ 4 (2008) 187 QGIG 76

[Extract from Queensland Government Industrial Gazette, Dated 8 February 2008, Vol. 187, No. 4, pages 76-78] INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial magistrate Colin Robert Bradford AND Q-COMP (C/2007/57) PRESIDENT HALL 1 February 2008 DECISION I am told from the Bar Table and I accept that it is unnecessary to rehearse the whole of the history of Mr Bradford's transactions with the insurer, WorkCover Queensland (WorkCover) and the Regulator, Q-COMP. It is sufficient to record that by a standard form, Notice of Claim for Damages executed on 4 January 2006 and filed with WorkCover the following day, Mr Bradford's solicitor took the first step towards the initiation of a claim for damages in respect of the following unassessed injuries: " - shins - soft tissue injury - lower back - soft tissue injury - arms - circulation injury - neck - soft tissue injury - right testicle - soft tissue injury - psychiatric injury.". By a letter dated 3 April 2006, WorkCover rejected each of the claims for unassessed physical injuries in the Notice of Claim. However, WorkCover accepted the psychiatric injury as a "pain disorder associated with a general medical condition". Mr Bradford sought a review of WorkCover's decisions. Q-COMP confirmed WorkCover's decisions. There was an appeal to the Industrial Magistrate at Brisbane. On that appeal Mr Bradford abandoned his claims to have suffered shin, arm, neck or right testicle injuries. On the issue of psychiatric injury, Q-COMP conceded that the proper diagnosis was "an Adjustment Disorder with Despressed Mood" and that matter was not further agitated. What was pursued was the claim Mr Bradford had sustained an injury to his lower back, or alternatively an aggravation of an existing degenerative condition of the lower back which, of course, would itself be a statutory "injury", see s. 32 of the Workers' Compensation and Rehabilitation Act 2003. The Industrial Magistrate rejected Mr Bradford's appeal. This is an appeal against the decision of the Industrial Magistrate. Having regard to the way in which the matter was argued on the Appeal it is necessary to go only to the Industrial Magistrate's reasons for decision, the evidence of the two orthopaedic surgeons (viz. Dr Gillett and Dr Ryan) and the evidence of the general practitioner (Dr Ballenden) who had seen Mr Bradford very shortly after the alleged injury at work. The evidence of the rheumatologists (which is adverse to Mr Bradford) may be put to one side. In short form, the case made by the Appellant at first instance was that in the course of his employment he worked on a Permatrac machine that made concrete products. The mould for the poured concrete was placed on a vibrating steel table to remove air bubbles. As the size of the structures being produced increased, Mr Bradford was said to have been required to stand on the vibrating table for lengthy periods numerous times in a day. The injury to his lower back and/or the aggravation of his existing degenerative condition was said to be attributable to standing on the vibrating table. On the Appeal to this Court, it was contended that each of Doctors Gillett and Ryan were of the view that there had been an aggravation to Mr Bradford's existing degenerative condition but that the doctors were divided on the cause of the aggravation. Dr Gillett was said to have accepted that the vibration of the table was the likely cause. Dr Ryan was said to have rejected that thesis. Against that background Counsel for the Appellant goes to para 28 of the decision of the Industrial Magistrate. That paragraph is in the following terms: "28. Dr Gillett thought the vibration could have aggravated the congenital condition, but Mr Bradford complained of renewed symptoms in October 2003, at a time when he was not exposed to vibration. I prefer Dr Ryan's opinion that the reaching motion, rather than the vibration, is a more likely trigger for paid in the lower back.". [The reference to "the reaching motion" is a reference to Mr Bradford's evidence that immediately before he ceased work because of pain he had reached upwards with his right hand to manipulate/operate a crane.] The Appellant's contention is that on that finding he had concluded that the reaching motion had at least temporarily aggravated the existing degenerative condition by increasing the severity of the associated pain. I do not accept that at para 28 the Industrial Magistrate attributed to Dr Ryan the opinion that the reaching with the right hand had caused an injury to Mr Bradford's lower back or aggravated the pain associated with his degenerative condition. It is sufficient to reproduce paras 31-33 of the Industrial Magistrate's decision and to add emphasis to the particular passages. Paras 31-33 are as follows: -- 1 of 2 -- 2 "31. On consideration of the evidence, any increased symptomatology attributable to the reaching motion resolved quickly, and before Mr Bradford saw Dr Ballenden in November 2003. At that time he had a full range of movement, and attributed all his problems to standing on the vibrating table. He described generalised pain, including lower back pain. The continuing generalised pain is suggestive of some condition other than a spinal condition. Mr Bradford has a widespread pain syndrome, and pelvic instability. He suffers from a degenerative back which is not worse now that in 2004. 32. The appellant submits that a finding that reaching for the crane in the course of work duties aggravated the congenital condition is sufficient for a finding that work was a 'significant contributing factors' for the purpose of both the WorkCover Queensland Act 1996 and section 32 of the Workers' Compensation and Rehabilitation Act 2003. 33. Having regard to Mr Bradford's congenital condition, his history of lower back soft tissue injury prior to 2003, the probability that his spondylisis would cause ongoing problems, his pelvic instability, his diffuse symptoms, the fact that examination by Dr Ballenden showed generalised pain and no limitation of movement in November 2003, and that Mr Bradford's back problems are no worse now than in 2004, I am not persuaded that Mr Bradford's back injury arose from his work at Rocla, or that his work was a significant contributing factor to his condition.". With respect to the Industrial Magistrate there is perhaps force in the submission that para 32 should have preceded para 31. However, the more significant point is that para 32 shows that the Industrial Magistrate was alive to the point about aggravation agitated in this Court. The Appellant's difficulty is that the Industrial Magistrate was not prepared to accept that the reaching upwards with the right arm had caused an injury or aggravation to Mr Bradford's lower back. Her Honour's conclusion is entirely supported by the evidence of Dr Ryan. With respect to the Appellant, it is apparent that Dr Ryan was somewhat sceptical about the history which the Appellant had related to him. At one point Dr Ryan said "...I've never heard a history like it ... " and went on to describe Mr Bradford's story as "... an unusual story". At another point, in describing Mr Bradford's response to certain tests which Dr Ryan had asked him to perform, Dr Ryan attributed to Mr Bradford that he was showing "... the signs of what they call nowadays abnormal illness behaviour". The most favourable comment Dr Ryan seems to have been prepared to make was to accept that the Appellant suffered from "chronic pain syndrome" which had been exacerbated by "severe negative prognostic factors relating to his dispute with WorkCover and open litigation" and recognised that the reaching upwards may have impacted upon the chronic pain. Dr Ryan expressly refused to accept that there was a connection between the chronic pain and any injury to Mr Bradford's back in May 2003. Indeed, in Dr Ryan's opinion, if that had been the problem Mr Bradford would have long since recovered. The Industrial Magistrate's function was to determine whether there had been an injury to Mr Bradford's back and/or an aggravation to his existing degenerative back condition. Her Honour answered that question in the negative. Her Honour had no further function to discharge. I dismiss the Appeal. I reserve all questions as to costs. Dated 1 February 2008. D. R. HALL, President. Released: 1 February 2008 Appearances: Mr A. Stobie instructed by Mr P. Wilkinson of McNamara & Associates, Solicitors for the Appellant. Mr S. Sapsford, directly instructed for the Respondent. Government Printer, Queensland The State of Queensland 2008. -- 2 of 2 --