Barnes v Orthopaedic Assessment Tribunal & Anor [2003] QSC 475

State Reporting Bureau LIBRARIAN _ jf&DDlTJ A75 Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DUTNEY J REVISED COPIES ISSUED State Reporting Bureau Date: 21 November, 2003 No 13 of 2003 WAYNE NOEL BARNES Applicant and ORTHOPAEDIC ASSESSMENT TRIBUNAL First Respondent and WORKCOVER QUEENSLAND Second Respondent ROCKHAMPTON .. DATE 19/11/2003 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 13 -- HIS HONOUR: This is an application to judicially review a decision of the Orthopaedic Assessment Tribunal dated the 18th of October 2002, where, in purported compliance with section 440(2) of the WorkCover Queensland Act 1996, the tribunal concluded that : 19112003 T14/RAP(ROK) M/T ROK2/2003 (Dutney J) "Following consideration of all the medical evidence presented, interview and examination of the worker, the Tribunal determined that the matters alleged for the purpose of seeking damages do not constitute an injury to the worker." The applicant in this case suffered a fall at work on the 23rd of November 2000. In his application for a damages certificate which he completed on the 24th of September 2001 he describes in item 35 what he was doing at the time the event occurred as follows: "The worker was cleaning up yolks being part of the process of anode stub repairs for which Holcan Constructions Pty Ltd were engaged on a contract with Boyne Smelters Limited. As he was grinding the yolks, a fellow worker yelled out and pointed to a forklift which was slowly rolling back towards the roadway of Enterprise Street. The handbrake had failed and the worker was attempting to stop the forklift from rolling onto the road. The worker began to run towards the forklift when he fell heavily on his backside on the concrete." In item 38, where details of the injury are to be recorded, the injury is stated to be "injury to lower back". A claim for periodic compensation for the event had been lodged on the 24th of November 2000. On that occasion, the injury was described as being to the left hand and left ankle. 2 JUDGMENT -- 2 of 13 -- On the 19th of September 2001, the applicant signed a statement. Relevantly, that statement said: 19112003 T14/RAP(ROK) M/T ROK2/2003 (Dutney J) "On 23/11/00, when I was knocked down by the forklift, I landed heavily on my buttocks. At that time I didn't really notice an injury to my back but I was a bit sore and stiff. I think I first noticed a numbness to my right thigh in about mid-December 2000. I didn't take much notice of it at the time. Over the next couple of months the numbness went to both legs and I also had a bit of pain in both legs. I did have some back pain as well but it wasn't bad enough to go and see someone about it. The pain and numbness progressively became worse." This is to be contrasted with an affidavit prepared for the purposes of the hearing before the Orthopaedic Assessment Tribunal dated the 22nd of July 2002, where, in paragraph 5, the applicant said: "In an attempt to avoid serious damage to the forklift or to other property or person, I attempted to stop the runaway forklift. I ran after the forklift and attempted to steer it away from the road when I fell heavily on the concrete floor. I fell heavily onto my buttocks and immediately felt pain in my lower back and my left ankle and my left hand. " The in paragraph 6, the applicant goes on: "The pain in my left ankle and left hand has resolved. The pain in my lower back, however, has not resolved. To the contrary, it slowly became worse. By mid-December 2000, I had noticed numbness in my right thigh and then numbness went into both of my legs. From the time of the fall on the afternoon of 23 November 2000, I continued to suffer from lower back pain. Pain and numbness progressively became worse and eventually I ceased work on 27 April 2001." 3 JUDGMENT -- 3 of 13 -- A great volume of medical evidence was put before the Tribunal. Particularly relevant seems to have been a report from the applicant's general practitioner dated the 15th of September 2001. The general practitioner says: 19112003 T14/RAP(ROK) M/T ROK2/2003 (Dutney J) "I first saw Mr Wayne Barnes on the 23rd of November 2000 when the handbrake on a forklift failed. He tried to turn the wheel to stop it running onto the road and slipped and injured his left thumb...I reviewed him on 24 November 2000. The X-ray reported no bony injury but the hand was very swollen. But also at this stage complained of pain and difficulty weigh-bearing on the left ankle. This I felt was due to a sprain to the ankle sustained at the time of the original injury. I reviewed him on 30/11/2000 when he felt much better and was fit to return to work. He has not been seen in that regard since." 4 JUDGMENT -- 4 of 13 -- A report from Dr Michael Redmond, a neurosurgeon, dated the 14th of June 2001 talks of the applicant beginning to experience some numbness in the right anterior thigh and "his back felt achy" from about March or April 2001. 19112003 T15/MLH(ROK) M/T ROK2/2003 (Dutney J) There was reference to the applicant's then belief that he injured his back whilst he was manipulating steel stubs and tacking them together with a welder. This was an incident some three weeks before Dr Redmond saw the applicant. Dr Redmond was not told of the incident in November 2000 until he reviewed the applicant again on the 22nd of August 2001. A report was also before the tribunal from a Dr John Baker, another neurosurgeon, dated the 14th of September 2001. Relevantly Dr Baker says, "He related to me the history of injury which occurred in November 2000 when he was thrown backwards onto his buttocks in an incident at work. Since December or January he has been complaining of numbness in the lateral part of the right thigh. Symptoms progressed since that time. In April he complained of burning pain in both legs which resulted in him ceasing work. At the time I saw him he was complaining of numbness in the right thigh with a constant ache in both legs, mainly in the calves. He also complained of anterolateral thigh pain." Thereafter there are a number of reports where the applicant attributes the onset of back pain to the immediate aftermath of the fall in November 2000. In rejecting the applicant's claim the tribunal made the following relevant findings: 5 JUDGMENT -- 5 of 13 -- 19112003 T15/MLH(ROK) M/T ROK2/2003 (Dutney J) "The tribunal notes the history as given by Mr Barnes and as contained in contemporaneous reports from medical practitioners. It would appear that Mr Barnes noted back pain in the lumbar region increasing from about March 2001. He initially noted a feeling of numbness of sensory alteration in the right thigh in December 2000. The tribunal is of the view that Mr Barnes developed bilateral neuralgia paresthetica (entrapment of the lateral cutaneous nerve of the thigh due to constitutional causes) beginning sometime in December 2000. He did not note any lumbar pain following the incident. He locates the symptoms at that time to the lower sacral region and these resolved rapidly. The tribunal is of the view that Mr Barnes is currently demonstrating typical symptoms and signs of lumbar disc degeneration which is of a longstanding nature, particularly in view of the MRI findings of multi-level changes in the intervertebral discs. The onset of lumbar pain some months after the incident would not, in the view of the tribunal, be directly related to any injuries suffered in the subject accident. In summary, in coming to its decision, the tribunal relied on the following facts: 1. The history given by Mr Barnes of a numb feeling in his sacral region following the subject incident, as well as transient paresthesia left thigh. 2. The onset of paresthesia in the right thigh in December 2000 followed by similar symptoms in the left thigh over the next couple of months. 3. The delay in the onset of lumbar symptoms until March 2001. 4. Contemporaneous medical reports noting the chronology of the thigh paresthesia and back pain. 5. As documented by Dr Reid in her report dated 2 September 2002, paresthesia in the thighs is a naturally occurring condition and is not related to a traumatic injury of any kind. 6. Radiological evidence of longstanding multi level degenerative changes in the lumbar spine ." 6 JUDGMENT -- 6 of 13 -- The first and primary submission made on behalf of the applicant is that section 440 subsection 2 of the Workcover Act requires the tribunal to accept "the matters alleged for the purposes of seeking damages" as outlined by the applicant. It was submitted, both orally and in writing, that this required the tribunal to accept the evidence of Mr Barnes for the purposes of the hearing to the effect that he felt immediate lower back pain upon falling on the 23rd of November 2000. This is, of course, at odds with earlier reports given by the applicant. If, indeed, this submission is correct, and the tribunal lacks the capacity or the power to determine disputed questions of primary fact, not necessarily discernible on clinical examination, then the decision seems to me to be reviewable on a number of grounds. What section 440 subsection 2 speaks of however, is not, in my view, the evidence, which is what the affidavit deposing to the onset of pain constitutes. Rather, the "matters alleged by the complainant", in my view, is a reference to that which is contained within the application for the damages certificate . The relevant matters alleged are those matters in item 35 of the application, which I have set out above, and the description of the injury in item 38, which is also set out above. This seems to me to be consistent with the decision of 19112003 T15/MLH(ROK) M/T ROK2/2003 (Dutney J) 7 JUDGMENT -- 7 of 13 -- Jones J in Knapp v. Coles Supermarkets Australia Pty Ltd & Ors, 2003 QSC 251, where in paragraph 11 his Honour said: 19112003 T15/MLH(ROK) M/T ROK2/2003 (Dutney J) "Counsel for the applicant argued that 'matters alleged by the claimant' meant that the facts relating to the incident, and complaints made about the effects of the incident, must be accepted, and the tribunal's decision must proceed on that basis. There are two difficulties for the applicant in the submission. The first is that the tribunal is bound to consider other matters as well, including what it discovers on its own examination of the claimant. It has the obligation to consider the opinions of other medical practitioners, but ultimately the question for determination is whether an injury, as defined, has been sustained. The second difficulty with the submission is that the applicant's allegations go no further than providing evidence that the applicant suffered low back pain, and it is obvious from the reasons that the tribunal took this fact into account." JUDGMENT -- 8 of 13 -- The approach, taken by Jones J, is consistent with that taken by Cullinane J in Thompson v. WorkCover Queensland and Anor [2002] QSC 119 at paragraph 12, and with Justice Helman in Yorke v. Young and Anor [2002] QSC 14. It seems to me that accepting these decisions, as I do, the position is that the Tribunal not only can, but must, decide for the purposes of determining whether an injury within the meaning of the Act has been suffered, the relevant facts necessary to determine that issue. It was thus open, on the evidence which I have outlined, for the Tribunal to have made the finding as to the onset of lumbar symptoms; there being support for that finding in the contemporaneous medical reports to which reference was made. If that finding was open to the Tribunal then it seems to me that a number of the grounds for reviewing the decision disappear. The decision, it seems to me, cannot, in those circumstances, be treated as being unreasonable and providing the facts are facts which the Tribunal is entitled to take into account, it cannot be said, in my view, that they have taken into account irrelevant considerations. The other primary basis for attacking the decision was that the report of Dr Reid, to which reference was made in the findings of the Tribunal which I have set out, was firstly a 19112003 T16/RPP ( ROK) M/T ROK2/2003 (Dutney J) 9 JUDGMENT -- 9 of 13 -- 19112003 T16/RPP(ROK) M/T ROK2/2003 (Dutney J) report which the tribunal was not empowered to obtain. This depends upon a construction of section 447 subsection (1) of the WorkCover Queensland Act which relevantly provides: "On a reference to a Tribunal about a non-fatal injury, the Tribunal - (a) May make a personal examination of the worker at any time; or (b) May arrange for the examination to be made by a doctor nominated by it." The submission made was that the use of the word, "or" between subparagraphs (a) and (b) required the Tribunal to make a determination to do one or the other but not both. In this case the Tribunal made a personal examination of the worker on the first occasion the matter was before them and consequently it was submitted they did not then have the power to refer the applicant to Dr Reid. It seems to me that the construction which the applicant wishes to place on section 447 (1) is one which it will not bear. Quite apart from the inconvenience to the Tribunal that such a construction would impose, it seems to be inconsistent with the decision of the Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v. Baker [1998] 153 ALR 463, where in legislation relating to the granting of visas, the minister was entitled to have regard to "The 10 JUDGMENT -- 10 of 13 -- 19112003 T16/RPP(ROK) M/T ROK2/2003 (Dutney J) person's past criminal conduct or the person's general conduct." A similar argument was raised in relation to the reliance upon both of the two apparently disjunctive elements in that case as was relied on here. At page 469 of the judgment, the Court said: "It is not conceivable that Parliament intended anything so unreasonable as a conclusion whether a person is now not of good character, based exclusively on his past criminal conduct, without regard to any recent good conduct, whether or not falling within the description of 'general conduct.' So the words 'having regard to' and the disjunctive 'or' must not be given the effect of requiring a blinkered decision to be made on the basis of criminal conduct considered in isolation." In relation to section 447, it seems to me that subparagraph (a) entitles the Tribunal to make as many examinations as it wishes. It would seem strange therefore that having made a single examination they would then be precluded from having an external doctor nominated by them perform a subsequent examination for them. I regard the use of the word "or" in S447(l) to mean in the context "and/or". It seems to me therefore that the obtaining of Dr Reid's report was within the ambit of section 447. A second criticism of Dr Reid's report was that it was the only medical report which in terms expressly excluded the complaints of the applicant from being an injury within the meaning of the WorkCover Act. In those circumstances, it was submitted that reliance on it constituted a breach of natural 11 JUDGMENT -- 11 of 13 -- 19112003 T16/RPP(ROK) M/T ROK2/2003 (Dutney J) justice. The report was dated the 2nd of September 2002. A copy of it was forwarded to the applicant's solicitors on the 13th of September 2002 and the final hearing of the Tribunal was conducted on the 8th of October 2002. Written submissions in relation to the report were provided to the Tribunal by counsel for the applicant on the 8th of October 2002. No adjournment of the proceedings was sought and no further material was produced. It seems to me therefore that it cannot now be argued that the applicant was not afforded an opportunity to deal with the matters raised by Dr Reid if the applicant was in fact able to do so. He was on the 8th of October 2002 represented by legal advisers. Finally, it was said of Dr Reid's report that it was tainted by bias. This submission was based upon some robust language used by Dr Reid and upon a reference by Dr Reid to the statement of the 19th of September 2001 rather than to the affidavit of the 22nd of July 2002. Since it seems to me to have been open to the Tribunal to make findings in accordance with the statement of the 19th of September 2001, and that Dr Reid has done the same, I conclude that she was entitled, even were she aware of the later change of Mr Barnes' evidence, to approach the matter from one position or the other and the weight to be given to her report would depend upon whether or not the Tribunal took a similar view . 12 JUDGMENT -- 12 of 13 -- The other robust language appears in the last paragraph on the penultimate page of the report where Dr Reid says, 19112003 T17/KMG(ROK) M/T ROK2/2003 (Dutney J) "It is my view that Mr Barnes is quite mistaken in pursuing this claim. Rather than blaming the workplace for his chronic constitutional degenerative condition and pursuing litigation, Mr Barnes should be empowered to take more responsibility for his own health an wellbeing. Mr Barnes should be advised to lose considerably more weight, to join a gym, to exercise more and to improve his level of fitness." While, as I say, that constitutes fairly robust language for a medical report it does no more, in my opinion, than summarise the opinion which Dr Reid seeks to justify in the preceding pages of the report. It does not, in my view, suggest that she approached the matter in the first instance with any preconceived opinion or any view adverse to the applicant. In light of the findings that I have just made it seems to me that the applicant has failed to make out the grounds under the Judicial Review Act upon which he seeks to rely and in consequence the application should be dismissed. MR McLEOD: I would seek costs, your Honour. HIS HONOUR: I order the applicant to pay the respondent's costs of the application to be assessed on the standard basis. 13 JUDGMENT -- 13 of 13 --