Carman v Q-COMP [2007] ICQ 43 (2007) 186 QGIG 512

[Extract from Queensland Government Industrial Gazette, dated 14 September 2007, Vol. 186, No. 6, pages 512-514] INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial magistrate Sue-Ellen Mary Carman AND Q-COMP (C/2007/29) PRESIDENT HALL 7 September 2007 DECISION Ms Sue-Ellen Mary Carman was employed as a registered nurse at the Cairns Base Hospital. Her employment commenced in July 1995. (Ms Carman had also worked at the hospital for an earlier unspecified period of no present relevance). Her employment came to an end in or about August/September 2003. The Industrial Magistrate who dealt with the matter at first instance summarised the circumstances in which Ms Carman's employment came to an end as follows: "The appellant ceased work on 31 August 2003, citing the reason in evidence as the increase in back pain. She recalled waking up one morning when she was off work with the flu with incredible back pain. In effect, her evidence was the back pain was too bad to be able to continue work as a nurse. The appellant in fact made a claim to Workcover citing a specific injury occurring at work around that time. That claim was rejected by Workcover, reviewed by Q Comp and again rejected.". Neither at first instance nor on the Appeal to this Court has the rejection of Ms Carman's application for compensation for the specific injury of August 2003 been put in issue. The proceedings at first instance and on the Appeal are about a Notice of Claim for damages relating to an unassessed back injury which was completed by Ms Carman on 1 July 2005 and lodged with WorkCover on 18 July 2005. The back injury was said to have been an "over a period of time injury". September 2002 was nominated as the commencement of the period of time. At paragraph 38 of the Notice the "event resulting in the injury" was described as "Manually handling and transferring patients over period of employment, pushing nursing trolley, bending to lift heavy objects.". The injury said to have been sustained because of the event, was described as a "disc injury" (para 41). In December 2005, WorkCover rejected the proposition that Ms Carman had sustained an "injury" within the meaning of the WorkCover Queensland Act 1996. Ms Carman sought a Statutory Review. In April 2006, Q-COMP confirmed WorkCover's decision of December 2005. In May 2006, Ms Carman commenced an appeal against WorkCover to the Industrial Magistrate at Cairns. The appeal was heard in November 2006. By a decision of April 2007, the Industrial Magistrate confirmed the decision of Q-COMP. This Appeal is against the decision of the Industrial Magistrate. To understand the debate on the Appeal, one must understand that notwithstanding the description of "injury" at para 38 of the Notice (see above), the case at first instance was fought as a case about whether, over the period September 2002 to August 2003, heavy or repetitive work in the course of her employment had aggravated an underlying degenerative back condition. The Industrial Magistrate summarised the matter in issue as follows: "What is in contention in this appeal is whether the appellant's underlying degenerative spinal condition has been aggravated by the work. Has that underlying condition been "made worse in the sense of more grave, more grievous or more serious in its effects: (Federal Broom Company Pty Ltd v. Semlitch (1964) 110 CLR 626 per Windeyer J. at 639)?". The first point taken for Ms Carman is that the Industrial Magistrate misunderstood the contentions in the appeal. Given His Honour's economy of language, the passage may be taken in each of two ways. If the Industrial Magistrate meant to suggest that the Appellant was required to establish that the underlying degenerative spinal condition itself had been made worse, and to suggest that proof of the provoking of pain without adverse impact on the underlying pathology was insufficient, His Honour erred. If, as read literally the second paragraph suggests, the Industrial Magistrate meant to suggest that proof of the additional symptoms of pain without proof of consequential or other impact on the underlying pathology, (e.g. by making it more difficult to treat), His Honour was indubitably current, see Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181. Because of a finding made by the Industrial Magistrate about the credibility of Ms Carman, it is unnecessary to resolve the conundrum. The critical passage dealing with the matter of credibility is in the following terms: "I find the appellant's evidence about this period to be vague and evasive. -- 1 of 3 -- 2 Firstly she could not recall putting in a report to hospital authorities about a September 2002 incident, then she recalled a report and nominated a person called Higgenbottom as being the person reported to. That was proved to be a complete guess and that evidence adversely affected her credit in my view. The appellant admitted to not really knowing what happened around 17 December 2002 and to using Dr Viljeon's visit as a prompt to report to Dr Campbell. The appellant reported debilitating pain to Dr Campbell, but family matters predominated the visit to Dr Viljeon on 17 December 2002, not back pain. I note that in 19 visits to Dr Viljeon in 2003, the appellant mentioned back pain only once in April. I find I cannot reject Dr Shepherd's opinion in favour of Dr Capmbell's opinion - Dr Campbell's opinion is heavily dependent on the information from the appellant who I find to be an unreliable witness.". It must be remembered that Pleming v Workers' Compensation Board of Queensland (1996) 152 QGIG 1181 is an often cited but ageing authority. The worker who was successful on the point of law about the content of "aggravation" was unsuccessful on the facts. Pleming v Workers' Compensation Board of Queensland, ibid, does not decide that a worker afflicted by a degenerative back suffers an injury if the back becomes painful at work. Neither does Pleming, op. cit., establish that a worker with a degenerative back suffers an "injury" if the work is a cause of the onset or intensification of pain. Pleming, op. cit., establishes that a worker with a degenerative back will suffer an injury where the back becomes painful or more painful and the employment is a significant cause of the onset or intensification of pain. (The version of the Workers' Compensation Act 1990 considered in Pleming, op. cit., was materially the same as the version of the WorkCover Queensland Act 1996 relevant to Ms Carman's claim.) To establish on the balance of probabilities that her employment at the Cairns Base Hospital was a significant cause of the onset and development of chronic pain, it was important for Ms Carman to commend herself to the Industrial Magistrate as a reliable historian. Whilst it was true that there was other evidence about working conditions at the Cairns Base Hospital over the relevant period, it was evidence which was not entirely helpful to Ms Carman. In short form, there was evidence of the adoption and implementation of a policy which abandoned the tradition of nurses lifting and supporting patients. Plainly, Ms Carman was entitled to develop a case that at the coal face the policy was honoured in the breach. However, on such a case, it was critical that her evidence be accepted. Her reputation as an accurate historian was also important on the issue of the weight to be given to those of the medical practitioners who had examined her who had developed a diagnosis on the basis of history which she had recounted to each of them. Ms Carman needed the support of medical practitioners because, against the background of evidence about very limited back injuries to nurses at the Cairns Base Hospital, Ms Carman was mounting an aggravation case in circumstances in which she had not been a full-time nurse and had worked 2 days a week for a total of 16 to 19 hours per week. There was some element of improbability about Ms Carman's account of events. There was an absence of any real attempt to deal with the problem. For all of the complaints of pain, there had been very little attempt to seek out medical assistance. One must accept that she raised the matter of back pain with Dr Viljeon around 17 December 2002. However, the Industrial Magistrate found, and the finding was plainly open on Dr Viljeon's evidence, the matter was raised during a consultation primarily directed at another problem. Whilst Ms Carman visited Dr Viljeon some 19 times in 2003, there was but one visit for back pain prior to the end of August, and only 2 for back pain during the remaining part of the year. The absence of complaint to her superiors was also a matter of concern. There can be no doubt that Ms Carman knew how to make a formal complaint. She had done so in September 2000 and again in April 2002, and on both occasions the Incident Report was about a work-related back injury. Whilst in fairness to Ms Carman, I should note that a nurse clinician (Ms Davis), gave asserted evidence that she had seen Ms Carman completing an Incident Report at some time in 2002. However, Ms Davis had been called as a witness on less than 24 hours' notice to give evidence of matters occurring 4 years previously. Those who had the responsibility of supervising Ms Carman were also called as witnesses. No one in the group recollected being provided with an Incident Report. Ms Davis did not claim to have received the Incident Report and did not claim to have seen it lodged by Ms Carman. Ms Carman's evidence was light on detail and some of the details that were given were inaccurate. The Industrial Magistrate specifically referred to Ms Carman's claim to have delivered a report to Ms Higgenbottom. His Honour might also have referred to the circumstance that Ms Carman told Dr Viljeon of an incident at work on or about 17 December 2002 when, in fact, she was on leave at that stage. To the report to Dr Viljeon might be added Ms Carman's subsequent claim to Dr Campbell that she had been engaged in repetitive lifting and bending at work over a period of time on or about 17 December 2002. I quite accept that witnesses may make mistakes. I accept that over much of the period 2002 to 2006 Ms Carman was distracted by her son's health problems. However, the submission that Ms Carman was not "good" on detail goes a step too far. This was not a case in which Q-COMP resorted to the use of a camouflage video camera (and in fairness, I add that there seems to be little doubt that Ms Carman is burdened by a painful back). It is unlikely that cross- examination could induce Ms Carman to recant the claims of heavy work and lifting and supporting patients. It was only -- 2 of 3 -- 3 on matters of detail that her evidence might be tested. It was open to the Industrial Magistrate to conclude that the evidence had failed the test. One has to accept that the assessment of credibility is not always a matter of judgement rather than of reason, compare Camden and Another v McKenzie and Others [2007] QCA 136 at para 32 per Keane JA. However, having perused the transcript of Ms Carman's evidence, I can understand the criticism of Ms Carman's evidence as "vague". I entirely accept that Ms Carman was not "wandering". Ms Carman was certainly a difficult witness but the difficulty arose because of her unwillingness to listen to the question, and not because of any inability to think with clarity. Her evidence was "vague" in the sense that it was couched in general terms and lacked precision. The adjective "evasive" is perhaps a little harsh. On the transcript, the problem may well have been that Ms Carman was answering the question which she wished to be asked rather than the question which she had been asked. However, on the most generous view, Ms Carman was either unwilling (or unable) to descend into detail, and an Industrial Magistrate with the advantage of seeing and hearing her give evidence may well have been justified in using the adjective "evasive". There is nothing in Devries and Another v Australian National Railways Commission and Another (1992-1993) 177 CLR 472 or Fox v Percy (2003) 214 CLR 118 to justify this Court in going behind the Industrial Magistrate's findings about credibility in a case such as this. It follows, that even if the Industrial Magistrate roiled accurately to identify the contentions, on a re-hearing on the record this Court would ultimately conclude that Ms Carman had not shown on the balance of probabilities that her employment was a significant cause of any aggravation of her underlying condition. This matter is not comparable to Goodman Fielder v WorkCover Queensland (2004) 175 QGIG 871. In that case there was proximity of time between a work-related incident and the onset of pain together with absence of evidence of a competing cause. Here a temporal connection between the pain and the work can only be found on the evidence of Ms Carman. There is a competing explanation/cause; viz. the natural progression of the degenerative back condition. If Ms Carman's evidence of heavy work be rejected, even if it be assumed that her back became painful at or after work, there is no basis for a finding that the work was a "significant contributing factor" to the pain rather than an occasion for its expression. I dismiss the Appeal. I reserve all questions as to costs. Dated 7 September 2007. D. R. HALL, President. Released: 7 September 2007 Appearances: Dr G. Cross, instructed by PCF Law for the Appellant. Mr F. Lippett, directly instructed for the Respondent. Government Printer, Queensland The State of Queensland 2007. -- 3 of 3 --