Ellis v Q-COMP (No. 2) [2005] ICQ 56 (2005) 180 QGIG 1132

[Extract from Queensland Government Industrial Gazette, dated 16 December, 2005, Vol. 20, No. 18, pages 1132-1133] INDUSTRIAL COURT OF QUEENSLAND Workers’ Compensation and Rehabilitation Act 2003 – appeal against decision of industrial magistrate Asuncion Ellis AND Q-COMP (No. 2) (C/2005/69) PRESIDENT HALL 2 December 2005 DECISION The Appellant, Ms Asuncion Ellis, maintains that she suffered a neck/stroke back injury in the course of her employment with Hair Advisory Centre Pty Ltd trading as Queensland Cosmetic Laboratories. The first incident was said to have occurred in March 2002. The Appellant says that she was attempting to bring a box down from a stack of boxes. She says it fell and that in taking evasive action she caused an injury to her neck/back. She says that approximately a week later, whilst she was using her full body weight in an attempt to remove a piston from a tube machine she further injured her neck and back. The third incident, which was said to have occurred in August/September 2003, once again arose out of an attempt to remove a piston from a tube machine. Additionally, the Appellant claims to have suffered an injury “over a period of time” by way of repetitive strain injuries to her neck/back/both limbs and wrists over a period of time from February 2002 to September 2003, while she was working as a process worker for Hair Advisory Centre Pty Ltd. On 29 September 2003 the Appellant sought benefits under the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”) in respect of the three incidents. By a second application for compensation dated 14 October 2003 she claimed for repetitive strain injuries to the neck/back/both limbs and hands over the period of time from February 2002 to September 2003. Both applications were rejected by WorkCover. In each case the ground of rejection was (substantially) that the Appellant had not suffered an “injury” within the meaning of s. 32 of the Act. WorkCover had access to a report of Dr John Webb, a consultant rheumatologist, and to a report of Dr Prue Fitzpatrick, an orthopaedic surgeon. Dr Webb advised in his report that: “There were no objective signs of any physical injury or organic disease, affecting the neuromuscular-muscular system, spine or joints. There was widespread tenderness on palpation to find bilaterally in the paravertebral muscles of the suboccipital neck, and upper border of scapulae, lumbo-sacral dimples, mid point of trapezii over both second costochondral regions of the upper anterior chest wall, both lateral elbows extensor muscles original and around the pelvic brim bilaterally. This lady has no evidence of physical injury or organic disease. This is non- organic pain syndrome (also termed fibromyalgia syndrome of fibrositis). She is depressed. The pain may have led to the depression: or I think more likely, is part of her developing depressive symptomatology over the past 20 months. Dr Webb stated that there have been no physical injure (sic) at any stage/time and considered that there was no evidence of hand/wrist injury.”. Dr Fitzpatrick reported that: “I would agree with Dr John Webb, Consultant Rheumatologist, report of 16 October 2003 in that many of Ms Ellis symptoms appear to be non-organic in nature. Specifically the pain she experiences in her neck and entire spine appears to be difficult to explain in an organic basis…I think it is unlikely that any significant injury has occurred as a result of Ms Ellis lifting out the piston cylinder in August or September 2003. I do not think that there is any significant pathology affecting her neck or back.”. The Appellant sought a statutory review. She was partially successful. In reliance upon a further passage in the report of Dr Fitzpatrick, viz.: “She did, however, seem to have genuine left tennis elbow symptoms . . . [which] may be related to the repetitive squeezing of cosmetic bottles in order to test their seals.”, the review officer varied the decision of WorkCover in respect of each claim to the extent of accepting a claim of a work-related injury in the nature of left tennis elbow symptoms arising out of her employment. The Appellant then launched an appeal by way of hearing de novo in the Industrial Magistrates Court. Each of Drs Webb and Fitzpatrick gave evidence at the hearing. So also did a number of medical practitioners whose evidence was favourable to the Appellant. The Appellant was wholly unsuccessful (save, of course, that the decision in relation to “left tennis elbow” remained in place). She was unsuccessful because the Industrial Magistrate split the medical witnesses into those who saw the Appellant early on, viz. Drs Webb, Fitzpatrick and Rose (the general practitioner), and those who saw the Appellant at a later stage (and whose evidence was favourable to her). His Honour preferred the evidence of the “earlier” group of doctors. The Industrial Magistrate did so because His Honour formed the view that as time went on the Appellant’s story improved and that the symptoms described to the two groups of doctors were quite different. -- 1 of 3 -- 2 The Industrial Magistrate formed an entirely adverse view of the Appellant’s evidence. At one point in the decision the Industrial Magistrate described the Appellant as “doctor shopping” and at another point His Honour said: “The evidence of the appellant while not totally incredible was certainly unconvincing. Her evidence generally was unconvincing and she was a witness in her own cause.”. I refer to those matters because there is an abundance of authority in this Court for the proposition that on an appeal by way of rehearing the Court should not go behind findings of fact by a tribunal of first influence which are heavily influenced by credibility findings, compare Tom’s Discount House v Q-COMP (2004) 175 QGIG 977. Counsel for the Appellant seeks to surmount the difficulty by putting aside the medical evidence relied upon by the Appellant at first instance and relying upon the medical evidence accepted by the Industrial Magistrate, together with evidence said to be either not disputed or alternatively corroborated. The submission is that if on such materials the proper inference is that the Appellant did suffer an injury within the meaning of s. 32 of the Act, she was entitled to a favourable decision though the case which she had developed had failed. The submission is sound. Its application to the facts is not. Counsel for the Appellant seeks to establish the three incidents on the basis that (at least) the first two incidents were not put in issue, that there were written reports about the incidents and the Appellant had sought (prompt) medical assistance. With respect, the occurrence of the incidents was an entirely controversial matter. The Appellant’s description of the incidents was always packaged with a description of the pain which flowed. The evidence of Dr Webb is that the twisting to avoid the box which was described by the Appellant would not have caused the pain which she described. It was the evidence of Dr Fitzpatrick that it was “unlikely that any significant injury to the neck or back had occurred in the manner described as lifting out the piston cylinders.”. Accepting that a mishap which causes the body to experience pain may be characterised as an “injury” (of unquantified extent), there is no basis for a conclusion that there was such an “injury” here. In reporting the incidents and seeking medical assistance the Appellant precluded mumbling about “recent invention”, but she did not corroborate herself. As to the “over a period of time” injury the Appellant seeks to rely upon the repetitive nature of the work and its capacity to cause strain and the consistency of the Appellant’s complaints to each of Dr Webb and Dr Fitzpatrick. With respect, the Industrial Magistrate was perfectly well aware that the work was repetitive. What was contentious was the extent of the repetition and of the capacity to cause strain. The Industrial Magistrate summarised the matter as follows: “The evidence of Free, Frinkovic and Foley supports the appellant’s evidence that the work was of repetitive nature but they disagreed with the rate and repetition given by the appellant and also the number and weight of the boxes they were required to carry. The witness Frinkovic agreed that there were complaints and it was not uncommon to complain. She stated, ‘We all complain to each other all the time about pain in the hand, shoulders, elbows and back.’ ”. It is plain that the Industrial Magistrate did not accept the Appellant’s version. The Appellant’s case is not improved by reliance upon an industrial instrument which describes the Appellant’s duties by reference to a maximum/minimum range. The issue was always where the Appellant sat within the range. It is not correct to say that the Appellant’s description of her symptoms to Dr Webb and Dr Fitzpatrick was always consistent. She complained to Dr Fitzpatrick about her forearms; not her wrists/hands. She certainly complained to Dr Webb about her wrists, but the complaint was about “clicking” in her wrists and not about pins and needles. With respect to counsel for the Appellant this is not a case of relying upon uncontroverted evidence, corroborated evidence and the opinions of the doctors accepted by the Industrial Magistrate. It is about resolving conflicting evidence favourably to the Appellant without regard to adverse findings about credibility which were made by the Industrial Magistrate. It is about using conclusions drawn from that evidence to force a result inconsistent with the express opinions of the medical practitioners upon the basis that the issue was fundamentally a mixed question of fact and law rather than a matter of medical opinion. It is about retrying the case. There is an incidental attack on the Industrial Magistrates use of evidence that the Appellant had amended a letter of support from another witness after it was signed in non-observance of the rule in Browne v Dunn (1893) 6 R 67. In fact, the cross-examination went so far that the Appellant said that the witness “… read it, read it very thoroughly, and then decided, yes. She signed it.”. Browne v Dunn, ibid, was rigorously observed. I dismiss the Appeal. I reserve all questions as to costs. Dated 2 December 2005. D.R. HALL, President. Released: 2 December 2005 Appearances: Dr G.J. Cross, instructed by Shine Roche McGowan, for the appellant. Mr A.B. Johnson, directly instructed, for the respondent. Government Printer, Queensland The State of Queensland 2005. -- 2 of 3 -- 3 -- 3 of 3 --