Crawford v Q-COMP [2006] QIRC 166 (2007) 184 QGIG 24

[Extract from Queensland Government Industrial Gazette, dated 12 January, 2007, Vol. 184, No. 2, pages 24-29] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Ian Crawford AND Q-COMP (WC/2006/9) COMMISSIONER ASBURY 22 December 2006 DECISION Overview Mr Ian Crawford was employed as a labourer, working on the reconstruction or remediating of revetement walls at the Gold Coast. On 29 April 2003, Mr Crawford fell from a jetty upon which he was working and landed on the sand below among pieces of concrete which were on the sand. Mr Crawford trapped his leg while falling. As a result of the fall Mr Crawford sustained a number of injuries. On 14 May 2003, Mr Crawford lodged a claim with WorkCover for compensation. On the claim form, Mr Crawford stated that he sustained the following injuries: "broken left foot, sore left ankle, knee, hip and lower back" when he climbed over a jetty, slipped and fell off. WorkCover accepted liability for: fractured right foot; left anterior cruciate ligament rupture; soft tissue injuries to cervical, thoracic and lumbar spine; and psychological injury (Adjustment Disorder with Mixed Anxiety and Depressed Mood). Subsequently, Mr Crawford suffered from pain in his left testicle and was diagnosed with a condition known as Chronic Orchialgia. That condition resulted in the surgical removal of his left testicle. Mr Crawford claimed that this condition also was the result of the injury sustained by him at work on 29 April 2003, and made an application for compensation in respect of the injury to his left testicle. Mr Crawford's claim for compensation in respect of this injury was denied by WorkCover in a decision of 12 August 2005. The decision of WorkCover was confirmed by the Review Unit of Q-COMP in a decision of 6 February 2006. In confirming the decision of WorkCover, the Q-COMP Review Unit decided there was insufficient evidence to state, that on the balance of probabilities, Mr Crawford's Chronic Orchialgia had arisen as a result of the event at work on 29 April 2003. Mr Crawford now appeals the decision of the Review Unit of Q-COMP, pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the 2003 Act). Issue for Determination At the time Mr Crawford sustained his injury, the relevant legislation was the WorkCover Queensland Act 1996 (the 1996 Act). The issue for determination in this case is whether Mr Crawford has suffered an injury within the meaning of s. 34 of the 1996 Act. Essentially, to succeed with the present appeal, Mr Crawford must establish, on the balance of probabilities, that the injury to his left testicle arose out of or in the course of employment. Evidence In addition to Mr Crawford, the following persons were called by the appellant to give evidence:  Dr Neil Wilson SMITH, Urologist;  Dr Phillip Maxwell MCDOUGALL, Urologist;  Professor Errol John MCGUIRE, General Surgeon and Professor of Surgery, Gold Coast Hospital. The respondent called Dr Karen Marie PROVAN, General Practitioner, to give evidence. Mr Crawford said that at the time he was injured, he was exceptionally fit, and was a member of the Australian Broom Ball team. Mr Crawford was also looking to be selected in the Australian over-forties hockey side. When he fell off the jetty, Mr Crawford had started to fall backwards but had ended up with his face in the sand. The beach he fell onto was littered with debris, broken blocks and the like, and because Mr Crawford was unconscious for a short time after the fall, he could not say which part of his body came into contact with the blocks and other debris. Mr Crawford's foot had been damaged when he fell backwards as it had been caught in the jetty. Mr Crawford described his pain level after the injury, as above anything he had ever experienced in his life. He had engaged in minimal movement each day, getting up in the morning to shower and then returning to a reclining chair. Thereafter, he had not left the chair other than to go to the toilet. In relation to contact with WorkCover in the early stages following his injury, Mr Crawford said that he had initially spoken to Ms Bunt. The crux of the conversation had been paperwork, and Mr Crawford could not recall whether he had described his injuries to Ms Bunt. Thereafter, he had spoken to Mr Gabbett. Mr Crawford said that he told Mr Gabbett about the pain in his groin and his left hip. The pain in his left hip had cleared up without any consequences. At this stage, rating his pain on the scale of worst to least, Mr Crawford said that the pain in his groin and his hip had been minor considerations, and the main problem had been his foot. Mr Crawford described this injury in his evidence -- 1 of 5 -- 2 to the Commission as his foot being snapped in half, so that his toes were pointing in the direction of 9.00 o'clock rather than 12.00 o'clock. Mr Crawford said that in response to the question from Mr Gabbett about what parts of his body hurt, he had said that everything hurt. In the days following the accident, Mr Crawford had been given painkillers. Operative procedures could not be performed until the swelling in his foot had gone down. In the interim, Mr Crawford saw Dr Provan on a number of occasions. Mr Crawford said that he had related all the areas of his pain to the medical professionals he saw at that time, but that the pain in his groin had been low on the list and one of the last things he mentioned. At that time, Mr Crawford had not been aware of specific problems with his shoulder, but was aware that his whole back and his neck were sore. Specifically, Mr Crawford maintained that he told Dr Provan that he had pain in his groin in their first interview. Dr Provan had said that she expected that this pain would probably go away, but could persist for some weeks. Mr Crawford said that he had not referred to his testicles but only to his groin, due to embarrassment. Mr Crawford said that at the time the pain in his groin area was the least of his worries because he was in extreme pain from his foot, and on other medication including Endone, which contained 5mg of morphine per tablet. This medication had been effective in reducing Mr Crawford's pain levels. Mr Crawford was immobilised from the date of the accident until mid-August 2003, when he had attempted to mobilise himself. While immobilised, Mr Crawford had slept with his foot elevated, and it had also been elevated during the day. Mr Crawford was aware of a dull ache around his groin area, but when he started to mobilise, became aware of pain in his left testicle when he moved. This pain was not the same as the dull ache he had experienced while immobilised. Mr Crawford had knee surgery in the week of 22 August 2003, and said that he became concerned about the pain in his left testicle after that surgery and while he was undertaking physiotherapy. Mr Crawford said that he realized that the pain in his testis was getting worse on exertion, and that it did not require much exertion before pain was experienced. This was approximately three weeks before 9 September 2003, when there is a note that Mr Crawford reported the pain in his left testicle to Dr Provan. Dr Provan requested diagnostic imaging, which was conducted on 26 September 2003. The results of that imaging were that Mr Crawford had a left-sided Varicocele, a condition brought about by an incompetence in the testicular vein, of a similar nature to a varicose vein. On 22 September 2004, Mr Crawford saw Dr McDougall, a Urologist, on referral from Dr Provan. Dr McDougall's report of that date (Exhibit 9) states that Mr Crawford has been complaining of discomfort in his left scrotum for over a year, and that he was diagnosed with a Varicocele at that time, but has not taken it any further. The report also states that Mr Crawford thinks that this came about following an accident in April 2003, but that this is highly improbable. Dr McDougall notes the presence of a moderate sized Varicocele, and suggests cure if the pain is sufficiently troublesome or leaving it alone as it will never do any harm in the long term. Mr Crawford said that Dr McDougall told him that in some cases a varicocle could be painful while in other cases it was not. Dr McDougall, who gave evidence for the respondent, said that his comment in the Report of 22 September 2004 on the improbability of Mr Crawford's opinion about the cause of his pain, was made because, assuming that the Varicocele was the cause of the pain, a Varicocele is not normally caused by a traumatic accident. Dr McDougall agreed with the proposition that a Varicocele could be painful, but said that this could vary from individual to individual, with most patients having no discomfort. Dr McDougall also said that it was highly unlikely that a Varicocele would be caused by a traumatic event. Under cross-examination, Dr McDougall said that he was aware that Dr Smith had said that the Varicocele was sub- clinical, and that two doctors could give a different opinion about the same patient. Dr McDougall also said that he could not argue with the advice that a person suffering a Varicocele could wear tight underwear, and that this usually relieved most of the discomfort. Further, Dr McDougall agreed that there was not always discomfort from a Varicocele and said that he had not been expressing a definitive view in his report of 22 September 2004 that a Varicocele was the cause of Mr Crawford's discomfort. Dr McDougall also said that while there were other causes which could have caused that discomfort, he could not find any, and Mr Crawford's testicle was normal. During cross-examination of Dr McDougall, Mr Webb recounted Mr Crawford's evidence about his accident on 23 April 2003 and the resulting injuries to Dr McDougall. Mr Webb put the proposition to Dr McDougall that if any other trauma was excluded, it was likely that Mr Crawford suffered some injury in that accident which caused the pain described by Mr Crawford after he mobilised. In response to that proposition, Dr McDougall said: "Well I mean under those circumstances, it would sound to me as though it could very well be referred pain that he developed in his testicle after his mobilisation. In other words, it might have come from somewhere else.". Dr McDougall went on to say that this was probably the explanation, if he accepted the history provided by Mr Crawford (Transcript p. 62 lines 1 - 10). Mr Crawford said that when the pain continued he requested that Dr Provan given him a referral to another specialist. Dr Provan referred Mr Crawford to Dr Smith, a Urologist. Dr Smith saw Mr Crawford on 4 February 2005, and his report of that date (Exhibit 10), states that Mr Crawford presented with left testicular pain, which he stated followed an accident at work. Dr Smith's report stated that there was no evidence of Inguinal Hernia Disease, the testes were normal -- 2 of 5 -- 3 in size, the spermatic cords were normal and there was no evidence of Epididymal pathology. Dr Smith also said that he could not define a Varicocele. Dr Smith concluded that: "In summary, Ian has Orchalgia, which appears to be post traumatic. If a Varicocele is present then it is sub-clinical and I do not think that this is the cause of the testicular ache. I do not think Varicocele repair would be of benefit. I would suggest to him a conservative approach regarding this left testicular pain, but he presents today requesting Orchidectomy. I explained to him that removal of the testes is usually the last resort in management. Ian presents today as a very well balanced and thoughtful individual. He is almost 2 years post injury and he requests Orchidectomy. Given his decision making I do not think that this is unreasonable although I have discussed with him the complications of ongoing pain despite Orchidectomy. He is aware of phantom pains and excepts [sic] this risk. We have set aside a date for Left Inguinal Orchidectomy.". Dr Smith performed a Left Inguinal Orchidectomy, whereby Mr Crawford's left testicle was removed. Mr Crawford said that the surgery had been effective in the treatment of his pain, and that while he had the odd pain following the surgery, the pain was nothing like the level it had previously been. Dr Smith provided a further report to WorkCover in relation to Mr Crawford, dated 29 June 2005 (Exhibit 11). Much of the material from Dr Smith's first report of 4 February 2005 (Exhibit 10), is repeated in this further report. That The Report of 29 June 2005 also contains the following statements: "1. Ian Crawford told me he injured the left side of his body including the left testicle. He told me that he had surgery on his left ankle and knee. He told me that the left testicular pain developed after this accident. 2. There were no pre-existing conditions of relevance. 3. Mr Crawford fell off a jetty injuring the left side of his body. 4. There is no relevant past medical history. 5. Examination findings revealed no specific scrotal pathology... 11. It is reasonable to believe that this man's left testicle could have been injured in a fall at the workplace on 29/04/2003 based on the history given... I am afraid that it is impossible for me to demonstrate a concrete link between the injury at the workplace and the onset of this testicular pain. I can only report to you the comments made by Mr Crawford at the initial consultation.". Dr Smith was called by the appellant to give evidence. In his evidence Dr Smith said that when he stated in his report that he could not demonstrate a concrete link between the injury at the workplace and the onset of Mr Crawford's testicular pain, he had meant that it was not possible to demonstrate a scientific link, given that he had seen Mr Crawford some 22 months after his injury. Dr Smith agreed that if you accepted Mr Crawford's history, more probably than not the trauma brought about the problem with his left testis. Dr Smith also agreed that the presence or absence of pain was relevant, and that he had taken into account that there was an absence of a past history of pain in Mr Crawford's case, in concluding that the pain was due to some injury sustained when Mr Crawford fell from the jetty on 29 April 2003. Under cross-examination, Dr Smith agreed that he was basing his conclusion on the reliability of Mr Crawford as a historian. Dr Smith also said that he was not aware of any delay in Mr Crawford being aware of the pain in his left testicle. In response to a question about whether there could have been some other cause of Mr Crawford's pain, given that he did not report it until September 2003, Dr Smith said this was unlikely. When asked to explain this comment, Dr Smith said: "Well, because I can't reach any diagnosis that would explain the sudden onset of pain in a man who's had no other event, who's had no surgery to the region, except it - on the balance of probability, it seems unlikely.". (Transcript p. 25 lines 56- 60) In relation to his use of the term "sudden onset of pain" Dr Smith said: "No, no, you asked me how I could reconcile a man complaining of five minutes - oh, five months after the accident at work, well, to reconcile that, I'd have to reach a diagnosis and apart from trauma, there is no other diagnosis.". (Transcript p. 26 lines 1 - 9) In relation to the proposition that it was highly improbable that Mr Crawford's complaints in relation to his left testicle were caused by what he stated to be a work related injury on 29 April 2003, Dr Smith said: "No, I don't think it's highly improbable that it was related to work.". (Transcript p. 27 lines 36 - 38) -- 3 of 5 -- 4 Dr Smith maintained that Orchidectomy, although a last resort in the management of Mr Crawford's pain, was reasonable in circumstances where Mr Crawford had suffered ongoing troublesome pain for some time, and had tried analgesia without success. Mr Crawford had presented as a reasonable person, and he gave a reasonable history that seemed consistent with a significant injury to the left side of his body. Dr Smith also said that the absence of a pathology diagnosis, neither favoured or refuted a history of past trauma, but was in keeping with someone who may have suffered a trauma. The pathology report in Mr Crawford's case did exclude other common demonstrable causes for his pain. Evidence was also called by the appellant from Professor McGuire. On 14 November 2006 Professor McGuire prepared a report at the request of Mr Crawford's Solicitors (Exhibit 13). That Report was prepared on the basis of various documents including a statement of Mr Crawford and medical reports. Professor McGuire did not examine Mr Crawford. His report states that on balance, Mr Crawford was likely to have suffered a traumatic incident with resultant testicular pain, and that this may have occurred locally or to the groin above his testis. Professor McGuire's report states that a back injury reported by Mr Crawford may have resulted in referred pain to the left testis. The Report goes on to conclude that the fact that the histology was normal probably also indicates a referred nature to the orchalgia such as one might see in nerve entrapment neuropathy, and that this kind of pain is often caused by trauma. Professor Maguire said in his evidence that a lot of Varicoceles are asymptomatic, and it was generally recommended that people with this condition support their scrotum with tight underpants, and that they should not have any symptoms if they did this. Professor Maguire also said that Mr Crawford's story that he had so much discomfort after the accident that he did not notice any pain in his testis immediately, was reasonable and that it was unlikely that a Varicocele would cause the ongoing long term discomfort described by Mr Crawford. Mr Crawford's symptoms could probably be explained by either an injury to the groin above the testes, or an injury to the L1 never root running into the testis, and associated referred pain. In relation to Mr Crawford's statement that he had noticed pain in the groin area at the time of the accident, but it was insignificant compared to his other problems, Professor McGuire said that it was a fair statement. In Professor Maguire's opinion, Mr Crawford would have been in so much pain from his other injuries, that the pain in his groin would have been insignificant. Subsequently, a nerve which might have been bruised or disturbed in its pathway, may have gone on to cause a neuropathy which gave referred pain to the left testicle. Professor McGuire also agreed that while Mr Crawford was reclining, the pain in his left testis would have been much less than while standing. Further, if pain from the main injury was being suppressed with opiates, then that would also have relieved any discomfort in his left testis. Under cross-examination, Professor Maguire maintained that he had seen a lot of Varicoceles, and in his experience, the condition caused discomfort rather than pain. This discomfort could be addressed by the patient wearing tight underwear. Dr Provan, who was called to give evidence by the respondent, said that she had no recollection of Mr Crawford complaining about pain to the groin or testicle region, prior to September 2003. Mr Crawford had mentioned this pain again in December, but after that there had been no other consultations during which it was raised. Dr Provan said that contrary to the evidence of Mr Crawford she did not see Mr Crawford on 29 April 2003 when his injury occurred. Mr Crawford had been treated at Pindara Hospital and then transferred to Brisbane for surgery. Dr Provan had first seen Mr Crawford in relation to the relevant injuries, on 13 May 2003. At that time, Mr Crawford had complained of pain in his left knee, left hip, lumbar spine as well as the fractured foot. Under cross-examination, Dr Provan maintained that any of Mr Crawford's symptoms which had been persistent and pervasive had been recorded by her. Dr Provan agreed it was possible that she might not record minor symptoms, but said that this was unlikely. Submissions Mr Webb of Counsel on behalf of the appellant Mr Crawford, submitted that on the basis of the medical evidence, the appeal would succeed. It was also submitted that the evidence of Dr Provan about when she had seen Mr Crawford, or the absence of a complaint about testicular pain, was not determinative, given that Mr Crawford was under heavy medication at the time of his injury. Mr Webb also pointed out that it had not been put to Mr Crawford that he was not giving a reliable history of his injury. Mr McLeod for the respondent, Q-COMP, submitted that notwithstanding that his injury occurred on 29 April 2003, Mr Crawford did not make any mention of pain in his testicular region until September 2003, when Mr Crawford stated that he had suffered this pain for some three weeks. Mr Crawford had then waited until September 2004 before seeing a specialist in relation to this matter. It was further submitted that Mr Crawford's statement to Q-COMP that he was embarrassed to mention pain in his testicles was unconvincing, and that Mr Crawford's statement that he had blocked out events before his injury was evasive. Mr McLeod also submitted that the medical evidence was not conclusive and on a close reading of the reports and the evidence it was unclear at the end of the day, what had caused Mr Crawford's condition. Dr McDougall had concluded -- 4 of 5 -- 5 that it was unlikely that the Varicocele caused the pain, and Dr Smith said that it was impossible to pinpoint a scientific link between the history given and the condition that Mr Crawford was experiencing when Dr Smith examined him. It was submitted that the Commission should find it surprising that Mr Crawford had not complained earlier of testicular pain, given the number of doctors he was seeing for his injuries. It was submitted that the evidence of Dr Smith that he was unable to establish a scientific link between Mr Crawford's injury on 29 April 2003 and his testicular pain, should be preferred to the evidence of Professor McGuire. Conclusions I am satisfied that on the balance of probabilities, the injury resulting in pain to Mr Crawford's left testicle, arose out of or in the course of employment. I have reached this conclusion for the following reasons. On 29 April 2003, Mr Crawford suffered a number of injuries when he fell from a jetty while working. These included a fractured left foot, left anterior cruciate ligament rupture and soft tissue injuries to Mr Crawford's cervical, thoracic and lumbar spine. Mr Crawford's evidence about these injuries and the pain he suffered as a result of them, was not in dispute. As a result of the injuries, Mr Crawford took medication for pain relief, including a morphine derivative, Endone. Mr Crawford also spent a considerable period of time in a reclining position. In this context, it is reasonable that Mr Crawford did not report pain in his left testicle to his treating medical practitioners, until September 2003, and I accept his evidence on this point. I also accept that the inconsistencies in Mr Crawford's evidence are understandable given he was in pain and medicated at the time the relevant events took place. Mr Crawford's injuries continued to give him discomfort for a lengthy period. While his fractured foot was repaired shortly after the accident occurred, Mr Crawford did not undergo a knee reconstruction until the week of 22 August 2003. Thereafter, Mr Crawford suffered further pain in his knee following an examination after the surgery, and also suffered ongoing back pain as evidenced by his medical records. In this context, it is reasonable that Mr Crawford did not seek treatment from a specialist for his testicular pain until September 2004. The evidence of Dr McDougall, Dr Smith and Professor McGuire is that it was likely that Mr Crawford's testicular pain was caused by a trauma. Further, those specialists agreed that if Mr Crawford's history of his accident and injuries was correct, that it was likely that this was the cause of his pain. Mr Crawford's history of the accident was not challenged. Further, there is no evidence that Mr Crawford suffered any trauma other than the accident in the course of his employment on 29 April 2003. Dr McDougall's comment, that: "...He [Mr Crawford] thinks that this came about following an accident in April of last year although I think that it is highly unlikely...". was made in the context of the accident and associated trauma causing the Varicocele, rather than the accident causing pain. When Mr Crawford's evidence was put to Dr McDougall, he agreed that the accident suffered by Mr Crawford on 29 April 2003 probably provided the explanation for his pain. While Dr Smith stated that it was impossible to demonstrate a concrete link between Mr Crawford's injury at the workplace and the onset of the testicular pain he later complained of, it was also Dr Smith's view that Mr Crawford's condition appeared to be post-traumatic. Further, Dr Smith said that if Mr Crawford's history was accepted, it was reasonable to believe that his left testicle could have been injured in a fall at the workplace on 29 April 2003. I am also of the view, on the basis of the medical evidence in this case, that if Mr Crawford suffered a Varicocele, it did not cause the pain which resulted in him undergoing an Orchidectomy. Further, there is no evidence of any other medical condition which could cause the pain complained of by Mr Crawford. The appeal is allowed. I set aside the decision of the Q-COMP Review Unit of 6 February 2006, and substitute the decision that on 29 April 2003 Mr Crawford suffered an injury which resulted in Chronic Orchialgia, and such injury arose out of or in the course of employment. Accordingly Mr Crawford's application for compensation is one for acceptance. The question of costs is reserved. I order accordingly. I.C.ASBURY, Commissioner Appearances: Hearing Details: 2006 16 November Released: 22 December 2006 Mr J. Webb instructed by Robbins Watson for the Appellant. Mr S. McLeod directly instructed by Q-COMP. Government Printer, Queensland The State of Queensland 2007. -- 5 of 5 --