Crockett v Q-Comp [2004] ICQ 13 (2004) 175 QGIG 1033

########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND Workers’ Compensation and Rehabilitation Act 2003 – s. 561 – appeal against decision of industrial magistrate Anthony Glenn Crockett AND Q-Comp (No. C85 of 2003) PRESIDENT HALL 4 March 2004 DECISION This is an appeal against a decision of an Industrial Magistrate delivered at Beenleigh on 12 September 2003. By that decision the Industrial Magistrate confirmed the decision of the Statutory Review Unit which had confirmed a decision of WorkCover Queensland to reject the appellant’s claim for workers compensation benefits. The appellant, who was previously employed by Goodman Fielder Buttercup Bakeries at Burleigh had claimed compensation from 20 June 2001 both on the basis of a physical condition and on the basis of a psychological condition. The appellant’s duties whilst employed at Burleigh were said to have been a significant contributing factor to the onset of each of the conditions so as to bring each condition within the definition of “injury” at s. 34 of the WorkCover Queensland Act 1996 (the relevant Act at all material times). In short form the appellant’s duties involved stacking crates containing loaves of bread upon dollies and pulling/pushing the dollies in the course of loading and unloading trucks. He was also responsible for the management of the bread waste bin where unwanted bread was left for collection by pig farmers etc., who wished to feed it to animals. -- 1 of 2 -- 1034 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 March, 2004 The physical condition from which the appellant was said to be suffering was complex regional pain syndrome. The Industrial Magistrate, who rightly concluded that the appellant was very sick, did not determine whether or not the appellant suffered from complex regional pain syndrome. Granted that Her Worship had formed a clear view that, even if the appellant was suffering from complex regional pain syndrome, the appellant had not established that his employment was a significant contributing factor, Her Worship’s decision to refrain from expressing a view about the appellant’s physical condition seems to me to be entirely understandable. It is clear from the transcript that the appellant, who suffers from an adjustment disorder, has been greatly distressed by the inability of a very large number of doctors to identify the nature and causes of his physical condition. It would contribute not at all to the appellant’s well being for the Industrial Magistrate to make findings which an ever-changing feast of symptoms subsequently cause treating doctors to dispute. The Industrial Magistrate’s conclusion that, even if the appellant suffered from complex regional pain syndrome his employment had not been a significant contributing factor was plainly open. It is apparent from the transcript that the appellant had conducted the case before the Industrial Magistrate on the basis that the complex regional pain syndrome had its origin in Achilles tendinitis and that the appellant’s condition of an Achilles tendinitis had its source in his work. It was a case supported by the evidence of an orthopaedic surgeon, Dr Langley, who was called as a witness by the appellant. Dr Langley’s evidence was contradicted by that of Dr Parkington who also was an orthopaedic surgeon. Dr Parkington had treated the appellant at the time when he was said to be suffering from Achilles tendinitis. Dr Langley, who examined the appellant for the purpose of preparing a medico-legal opinion did not see the appellant until some seven months later. There is evidence by Dr Schwarzer, a specialist in pain management, rheumatology and musculoskeletal and pain medicine (called as a witness by the appellant) that if present, Achilles tendinitis, could be diagnosed at the stage when Dr Parkington saw the appellant and was easier to diagnose earlier in its history. The evidence of Dr Parkington had a ring of conviction about it. Dr Parkington gave evidence that if the appellant was suffering from Achilles tendinitis it was the first case of bilateral Achillis tendinitis which Dr Parkington had encountered and that the appellant would not be walking on his toes (as he was) if the problem was Achilles tendinitis. There had been a bone scan which should have shown up any inflammation associated with tendinitis and an ultrasound which should also have shown any tendinitis. The Industrial Magistrate was perfectly entitled to prefer the evidence of Dr Parkington to the evidence of Dr Langley. It may be conceded that there was evidence from Dr Schwarzer that complex regional pain syndrome may be triggered by a very small injury, e.g. a ligamentous tear, and other evidence that the condition may develop spontaneously. That was of no assistance to the appellant who needed to show a connection with the appellant’s employment and who had a burden of proof to discharge. As to the appellant’s adjustment disorder, the case made before the Industrial Magistrate was that the disorder was attributable to excessive and exhausting work in the service of the employer. It was a case which had the support of an opinion from a psychiatrist, viz. Dr Lichter. As the hearing progressed it become apparent that the version of events supplied by the appellant to Dr Lichter upon which Dr Lichter had relied for his opinion was inaccurate in important respects. In particular, Dr Lichter proceeded on the view that production at Burleigh increased for five months whilst a facility at Carina was closed. It was put to Dr Lichter in cross-examination that the period of closure was two weeks and that the appellant worked for only four days of that period. Dr Lichter accepted that those circumstances would make a difference to his opinion. Additionally, Dr Chittenden, a specialist in psychological medicine gave evidence that the appellant’s mood disorder was secondary to his physical condition. At that point, the appellant’s case was in disarray. Importantly, the Industrial Magistrate expressed the view that the appellant was exaggerating the hours of his work and the burden of his labour. No case has been made for going behind Her Worship’s decision. The appellant’s evidence was inconsistent with the case histories developed by the various doctors on the basis of information provided to them by the appellant. Additionally, Dr’s Schwarzer, Lotz, and Lichter all conceded that a person in the appellant’s state of health and with a mood disorder would be likely to look back over time and find the escalation of his condition in events in the work place. Particularly that was so, when medical science had (as here) been unhelpful as to his condition. I add that the passages in the transcript of the appellant’s evidence to which I have been taken are redolent with expressions of regret that the appellant tried so hard and allowed himself to be “put upon”. Finally, the Industrial Magistrate did have the advantage of observing and hearing the appellant. Like the Industrial Magistrate I am quite prepared to accept that the appellant’s condition blurred his perception. But given the state of the medical evidence, once the appellant’s evidence of excessive and exhausting work was rejected, the case that the disorder flowed from the labour of his work wholly failed. Counsel for the appellant bravely contends that the Industrial Magistrate erred in that Her Worship confused evidence about excessive/exhausting work prior to April 2001 with the evidence about the overwork after April 2001. With respect, it seems to me that the Industrial Magistrate was unable to distinguish between evidence which had been exaggerated and evidence which had not, and rejected the whole of the appellant’s evidence about workload. Further, before the Industrial Magistrate, the period April – June 2001 was critical. On the hypothesis that the mood disorder was secondary to the physical condition, if the appellant’s evidence about the workload over the period April – June 2001 had been accepted, an issue would have arisen as to whether the appellant’s physical/psychological state was the result of aggravation of his psychical condition by overwork. With the rejection of the appellant’s account of his workload that issue, of course, vanished. But it had been an issue before Her Worship and explains the weight given to the past-April workload. On the appeal to the Court, quite a different case has been made. The case now made is that the complex regional pain syndrome was directly caused by excessive/exhausting work prior to April 2001. The difficulty confronting the appellant is that the case now being mounted had not been pursued before the Industrial Magistrate. Indeed, so far from the minds of the parties was the submission now made that the medical evidence was taken on the first day and the evidence of the appellant on the second day. The claims which the appellant made in his evidence about his work load prior to April 2001, which go well beyond the case histories, were not put to the various doctors and could not have been. Save for a suggestion (based on an inaccurate history) in the statement of Dr Lichter there is no medical evidence to support the submission now made. The passages in the statements of Dr Schwarzer now relied upon are about the impact of the workload on the pain syndrome after it had developed. I reject the submission. There is no evidentiary basis for concluding that the complex regional pain syndrome was directly caused by the appellant’s work load. I dismiss the appeal. I reserve all questions of costs. Dated 4 March 2004. D.R. HALL, President. Released: 5 March 2004 Appearances: Mr K. Geraghty instructed by Hunter Solicitors, for the appellant. Mr A.A.J. Horneman-Wren, directly instructed for the respondent. -- 2 of 2 --